채무의 승인과 최고 후 확정적 시효중단을 위한 보완조치 - 대법원 2022.7.28. 선고 2020다46663 판결의 검토 -

Abstract

The judgment number 2020 Da 46633, July 28, 2022, Supreme Court has the following issues. First, the issue is whether the effect of notification is recognized in the notification of credit transfer and whether the notification of credit transfer in this case involves the meaning of claim for implementation. Second, if the case covers the effect of notification, the question is whether acknowledgment of indebtedness is included in the supplementary measures for definitive interruption of prescription after notification. Third, the question is whether there is room to interpret with restrictions that interruption of prescription does not affect guarantee debtors while seeing that acknowledgment of indebtedness is included in supplementary measures for definitive interruption of prescription after notification. As for the first issue, there is the judgment “(even if the right of general notification of credit transfer pertains to an event other than trials on the right is a separate question) when there is a special circumstance such as a request for implementation is additionally attached to informing of the credit transfer in the notification of credit transfer, this can be recognized as an exercise of the right other than trials on the right,” which is the unanimous judgment number 2010 Da 28840, March 22, 2012, Supreme Court. In this legal principle, after recognizing the premise that the unanimous judgment can be applied also to the extinctive prescription rather than the exclusion period, the request for exercise is additionally attached to the notification of credit transfer in this case. Therefore, it was judged that the effect of interruption of extinctive prescription can be recognized due to “the special circumstance.” As for the second issue, this judgment ruled that acknowledgment of indebtedness pertained to supplementary measures for definitive interruption of prescription after notification. As for the third issue, this judgment, from the perspective that the effect of interruption of prescription reached guarantee debtors, accepted the original judgment (Case Number 2019 Na 1671, September 24, 2020, Ulsan District Court) that “the extinctive prescription of guarantee credit for this case has definitively been interrupted on around December 30, 2008 when the notification of credit transfer reached a dead A.” This paper reviewed related points according to the above-presented issues about this judgment, in relation to the conclusion out of the dismissal of the appeal as well as judgment on each of the issues and clarified the feasibility of the judgment and the reasons. This judgment expressly clarified the standpoints that acknowledgment of indebtedness is included in the supplementary measures for definitive interruption of prescription after notification for the first time as for the second issue. There are very few literature presented in textbooks and notes in relation to this issue. Even if such matters are handled, it would be difficult to understand the contents. This issue has not been summed up based on Korean precedents and theories, causing confusion. This judgment is meaningful in that such confusion has been resolved to a certain extent. Based on this judgment, the relations of supplementary measures for definitive interruption of prescription after acknowledgment and notification of indebtedness shall be desirably discussed in depth in the academia and such precedents shall be developed further.