The Korean Civil Code stipulates claims, seizure or provisional seizure, provisional disposition, and approval as reasons for interruption of extinctive prescription(Article 168). Among the above claims, the judicial claim is regulated in Article 170,...
The Korean Civil Code stipulates claims, seizure or provisional seizure, provisional disposition, and approval as reasons for interruption of extinctive prescription(Article 168). Among the above claims, the judicial claim is regulated in Article 170, and the demand notice is regulated in Article 174. the judicial claim usually means that the right holder files a lawsuit against a person who will benefit from the prescription by taking the right subject to the extinctive prescription as the subject of a lawsuit. Even if the right is claimed in other ways in the trial proceedings, the effect of interruption of extinctive prescription due to the judicial claim may be recognized. In the case the debtor (the setter of the mortgage right) filed a lawsuit against the creditor (the mortgage right holder) for the absence of the right to claim the return of the loan, and the defendant's creditor actively responded to this and sought the dismissal of the plaintiff's claim, arguing that the above right to claim the return of the loan existed effectively. And the court accepted the creditor's claim and confirmed the dismissal of the plaintiff's claim. The Supreme Court's decision on December 21, 1993, 92da47861, ruled that the above right to claim the return of the loan(it was not a subject of a lawsuit.) had a definitive interruption of prescription equivalent to the judicial claim. But in the case where the claim of rights has been made in the trial proceedings, The Supreme Court determined that while the lawsuit was ongoing, the state of exercising the right by demand notice continued. This seems to have been influenced by Japan's ‘trial notice of demand theory’ for the protection of rights holders.
Therefore, even under the Korean Civil Code, it is necessary to establish a standard for determining whether a claim for rights should be viewed as the judicial claim or the trial notice of demand when rights are claimed in the trial proceedings. To this end, the following conclusions were made based on the analysis of Japanese and domestic precedents in which the material scope of the interruption of extinctive prescription by the judicial claim or the trial notice of demand was problematic. If the right holder asserts his or her rights in the proceedings, the court hears and judges it, and the scope of a claim's acceptance depending on the result of the judgment, I think that the claim can be viewed as the judicial claim. However, the intention of the person claiming the right should be considered here. If the claim of rights is merely an expression of the intention to "exercise the right in the future," it cannot be recognized as the judicial claim.
On the other hand, Articles 170 (2) and 174 of the Civil Code are very similar in content, and the prevailing view is to explain the grounds of Article 170 (2) in connection with the notice of demand of Article 174. However, this interpretation may result in the disadvantage of the completion of the extinctive prescription by applying Article 174 to cases where only Article 170 of the Civil Code can be applied. However, in the German Civil Code, there was no provision to recognize the effect of interruption of extinctive prescription due to notice of demand, but the first sentence of Article 212 (2) of the German Civil Code, which is the original form of Article 170 (2) of the Korean Civil Code, recognized that if a lawsuit was filed again within six months from the date of dismissal or withdrawal, the extinctive prescription is interrupted at the time of the first trial claim. So the prevailing view do not fit the above legislative history. The above view has many other problems. In the case of dismissal or withdrawal of a lawsuit, Article 170 (2) of the Civil Code directly regulates this, so Article 170 (2) and its interpretation should be applied instead of applying Article 174.