변제충당과 소멸시효 중단사유로서 승인의 인정 범위 - 대법원 2021. 9. 30. 선고 2021다239745 판결 -

초록

In the past, the Supreme Court has recognized the implied acknowledgment and waiver of prescription profits, and has relatively easily recognized the acknowledgment as a reason for the suspension of prescription and the waiver of prescription profits by estimating the perception or intention of the parties. If there were several contracts between the parties, it was understood that if part of the reimbursement was made, the entire prescription was suspended or the benefits of the entire extinctive prescription were waived unless there were special circumstances. I think that is related to a unfavorable Supreme Court's attitude towards recognition of the extinctive prescription, however it should be examined that how the reluctant attitude needs to be implemented by individual case. That is because the other Supreme Court precedents, as declared in the Supreme Court, is rather different from the current implied acknowledgment and of interest as the interruption of prescription for a waiver in the method of interpretation. On the contrary it would conform to the legal system to approach as the violation of bona fides, when the debtor shows the attitude not to counterargue the completion of extinctive prescription. Meanwhile, non-existence of any agreement or designation of allocation does not mean the acknowledgment of the total debt in the situation of the allocation. I think it is necessary to analyze the behavior of the parties in individual cases more closely and clarify whether the debt has been approved based on the recognition of the existence of the debt while understanding its own profit situation. However, I agree with the conclusion of the target judgment. This is because by analyzing specific facts, the perception of the parties was confirmed and the judgment was made therefrom. The partial reimbursements here are not insufficient to be viewed as acknowledgment for the entire debt. Through such work, it seems appropriate to judge the scope of the suspension of extinctive prescription in the future. On the other hand, when the Civil Code revised in relation to the extinctive prescription system, it is necessary to consider the trends and concerns of these precedents. In this process, it is necessary to consider the entire regulation system of the extinctive prescription system by referring to the recent foreign revisions.

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