소멸시효 완성의 효과 -변론주의를 중심으로-

초록

Since there is no direct provision in the Civil Code regarding the effect of completion of extinctive prescription, there has been a conflict of opinion between the absolute extinction theory and the relative extinction theory. The main legislations provide that a creditor’s right is not extinct but a debtor has the right to refuse the performance of debt when the extinctive prescription is completed. But a review of the Korean Civil Code shows that the legislator adopted the absolute extinction theory. The absolute extinction theory proposes that the right of the creditor is absolutely extinct when the extinctive prescription is completed, but since the Civil Procedure Law takes the principle of pleading the court does not consider the extinctive prescription as ex officio if the debtor who would benefit from the completion of extinctive prescription does not claim it. This is criticized by the relative extinction theory. According to the absolute extinction theory, the extinctive prescription claim is ‘Einwendung’. Whether a right is extinct by extinctive prescription is a matter of fact, not a matter of law, so the principle of pleading is applied to it. Therefore, the court can decide only if the fact in issue of the extinctive prescription, which is the start date and the elapse of the period, is asserted by the party. The claim of extinctive prescription is a statement on facts, so the rule that any party’s allegation is common to the other party is applied to it. Therefore, the court can decide even if the fact in issue of the extinctive prescription is asserted by the plaintiff, not the defendant who would benefit from the extinctive prescription. However, even if the plaintiff, the creditor, asserts the date of payment as the cause of the claim it can not be regarded as the fact in issue of extinctive prescription. The defendant’s legal statement that the plaintiff’s right is extinct is not necessary, but since the extinctive prescription must be asserted concerning the extinction of the right it can not be said the plaintiff’s claim of the occurrence of the right is the claim of the extinction of the right. If the plaintiff’s claim of the date of payment is regarded as the claim of the start date of extinctive prescription as the relative extinction theory proposes, the judgment will be against the principle of pleading and not be justified in many cases in which the start date and period of the extinctive prescription matter. As the absolute extinction theory proposes, the party who would benefit from the completion of extinctive prescription must claim it at trial based on the principle of pleading. The effect of the completion of extinctive prescription should be interpreted by the absolute extinction theory taken by the Civil Code.

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