일부청구와 시효중단 - 대법원 2020. 2. 6. 선고 2019다223723 판결을 소재로 -

초록

In case of claiming only a certain portion of a credit while expressing on a complaint that the amount of the claim will be expanded throughout the procedure, the prescription of the yet to be claimed portion cannot be interrupted unless it was actually claimed until the conclusion of the action. Regarding such cases of partial claims, the Supreme Court has recently decided(2019Da223723 decided February 6, 2020), that the creditor can still interrupt the prescription of the rest of the claim by taking measures provisioned in the Civil Act Article 174 within 6 months after the completion of the litigation. In principle, the prescription cannot be interrupted for the portion that has not explicitly became the subject of a partial claim. However, if the creditor initially expressed his/her will to expand the amount of the claim afterwards and actually did so, the prescription for the whole claim is regarded to be interrupted starting from the beginning of the litigation. The significance of the subject decision lies in the fact that it clarified the legal effect of partial claims as ‘continuous notice of demand’ for the yet remaining portion of a claim, while premising the legal principle of the above mentioned Supreme Court decisions. However, this article had to point out that the legal effect of a notice of demand cannot be taken as continuous execution that is even lasting throughout the litigation once the notice has reached the opponent, considering the legal nature of the notice of demand, which is no more than a single-sided action of requirement. With this perspective, this article reviewed the legal principles of partial claims and interruption of prescription based on the subject decision.

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