不法行爲에 있어서의 消滅時效

Abstract

Art. 766 of The Korean Civil Code on "extinctive prescription in torts" provides for one type of the statute of limitations which is peculiar to tort law. Almost every kind of claim based on a contract must be brought within ten years under Art 162 of the Civil Code. But the claim for compensation for any damage arising from a delict is barred by extinctive prescription after three years from the date at which the injured party obtained knowledge of the injury and of the identity of the tortfeasor or the person to make compensation(Art. 766①, K.C.C.), and without that knowledge the claim is restricted to within ten years from the date of doing delict(Art. 766②, K.C.C.) in the same way as a claim based on a contract. In this paper I study the purposes of the two distinct regimes, Art. 766 and Art. 162 of the K.C.C., and to ascertain the meaning of the word 'date of knowledge', 'date of doing delict' by investigating judicial precedents of the Korean Supreme Court. Even though the definition of those phrases are the crux of the question in determining wether or not a tort damages claim is extinct as a result of the expiry of the allowed period, we think that it is not easy to make a clear definition of those words. In related cases the Korean Supreme Court interprets 'knowledge' in the phrase 'date of knowledge' to mean 'present and concrete knowledge' and 'date of doing delict' as the time when the damage occurred. By that construction of law, the Korean Supreme Court seeks to delay the running of the necessary period for extinctive prescription in torts.