시효중단을 위한 ‘새로운 방식의 확인소송’에 대하여 - 대법원 2018. 10. 18. 선고 2015다232316 전원합의체 판결에 대한 검토 -

Abstract

The majority opinion in the ruling of the Supreme Court en banc Decision 2015Da232316 Decided October 18, 2018 permitted the ‘new form of litigation seeking confirmation’ with respect to only a judicial claim as a subsequent suit for the interruption of extinctive prescription besides a litigation seeking performance and a litigation seeking confirmation of a claim. However, this should be reconsidered for the following reasons: First, a ‘Judicial claim’ is, no matter how liberally construed, to ask the court to resolve legal disputes related to the existence of a claim. However, the intent of the new form of litigation seeking confirmation is to seek confirmation of the fact that a subsequent suit has been brought, which becomes evident by filing a lawsuit. As it is not an act of seeking the judgment of the court, it should be seen as only a de facto ‘preemptory notice’. Furthermore, the object for confirmation is an obvious fact about which there is no contention, so the benefit of lawsuit should also be denied. Second, creditors can extend the period of extinctive prescription virtually indefinitely by the new form of litigation seeking confirmation. On the other hand, debtors cannot gain any real benefit thereof. The potential of double enforcement which is discussed regarding the litigation seeking performance is not likely to be realized and it is not too burdensome for the debtor to insist on the causes for a claim objection as a plea. Rather, it gives the debtor the advantage of evading burden of proof in the future. The majority opinion of the ruling that the litigation costs ought to be borne by a creditor is not allowed in the current the Civil Procedure Act. Finally, in case of claims that are subject to the short-term extinctive prescription, as their period of extinctive prescription is not extended, there is no practical use for the new form. According to the amendment to the Civil Code drafted by the Ministry of Justice in 2014, the exercise of a right in the court is a cause for suspending extinctive prescription, so there is no need to adopt a new form of litigation seeking confirmation unfamiliar at this point.