이행불능 시 본래 채권의 소멸시효와 해제권 행사 — 대법원 2022. 9. 29. 선고 2019다204593 판결 —

초록

The Supreme Court Decision in this case held that when the original obligation becomes impossible to perform, the right of rescission and the right to restitution based on that rescission cannot be exercised after the completion of the extinctive prescription of the original claim. This ruling is based on the premise that the extinctive prescription of the original claim continues to run even after the original obligation becomes impossible to perform. However, once performance becomes impossible, the right to claim performance is extinguished. Accordingly, the original claim, whose essential content is the right to claim performance, is extinguished and replaced by a claim for damages. Since the original claim is extinguished, the extinctive prescription of the original claim does not proceed. Even if one takes the view that the original claim is not extinguished by the impossibility of performance, it cannot be said that the extinctive prescription of the original claim continues to run. In a state of impossibility of performance, the creditor cannot exercise the right to demand performance which is necessary to interrupt the running of the extinctive prescription. It contradicts the very reason for the existence of the extinctive prescription that the extinctive prescription of the original claim continues to run. There is also a prior Supreme Court ruling in a similar case which held that the extinctive prescription of the original claim does not proceed in a state of impossibility of performance. Thus this Supreme Court Decision should have explicitly ruled on this point rather than taking it as an obvious premise. Even if one accepts the view that the extinctive prescription of the original claim continues to run despite impossibility, it is not appropriate to conclude that the right of rescission and restitution cannot be exercised after the completion of the extinctive prescription of the original claim. This Supreme Court Decision relies on Article 167 of the Civil Code which stipulates the retroactive effect of the extinctive prescription. However, interpreting the provision to mean that the completion of the extinctive prescription nullifies the prior occurrence of impossibility is beyond the scope of the the privision. Additionally, concluding that the right of rescission and restitution cannot be exercised after the completion of the extinctive prescription of the original claim is inconsistent with the precedents which recognize a separate period for exercising these rights independently of the original claim. This Supreme Court Decision ruled that the defendant's plea of the extinctive prescription regarding the return of the deposit includes the argument that the original claim is extinguished by the completion of the extinctive prescription and the plaintiff can not exercise the right of rescission and restitution. However, the plea of extinctive prescription against the restitution claim differs, in fact in issue, from the plea against the claim for transfer of ownership. Furthermore, it is not consistent with the principle of pleading to regard the defendant’s argument as extending to the legal assertion that the right of rescission and restitution cannot be exercised once the claim for transfer of ownership is extinguished by the extinctive prescription. It can not be justified even if it leads to a substantively reasonable result.

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