Open Decision Ledger · Rehabilitation & bankruptcy
Forfeited rehabilitation claim cannot interrupt limitation for co-debtors
Supreme Court, June 30, 2021, 2018Da290672 (judgment)
Case name: 손해배상(기)
Official text on the National Law Information Center
Question
Where a rehabilitation claim was forfeited under Article 251 of the Debtor Rehabilitation and Bankruptcy Act, may the creditor, during a suit against a third party, serve notice of suit on the rehabilitation debtor and demand performance of that forfeited claim so as to interrupt limitation against other joint debtors or guarantors under Article 416 or 440 of the Civil Act?
Holding
No. Once a rehabilitation claim has been forfeited under Article 251 of the Debtor Rehabilitation and Bankruptcy Act before the limitation period expired, there is no longer any question of interrupting limitation on that debt. So although the creditor served notice of suit on the rehabilitation debtor during its suit against a third party and stated in that notice a demand for performance of the forfeited claim, the creditor cannot thereby assert interruption of limitation under Article 416 or 440 of the Civil Act against the other joint debtors or guarantors.
Summary of the holding, verbatim
회생채권이 소멸시효기간 경과 전에 채무자 회생 및 파산에 관한 법률 제251조에 의하여 실권되었다면 더 이상 그 채무의 소멸시효 중단이 문제 될 여지가 없다.
Unofficial English translation
If a rehabilitation claim has been forfeited under Article 251 of the Debtor Rehabilitation and Bankruptcy Act before the extinctive prescription period expires, there is no longer any room for the interruption of extinctive prescription of that obligation to be at issue.
Disposition
Partly reversed and remanded Stated in the decision
원심판결의 피고들 패소 부분 중 이 사건 3, 5공구 공사에 발생한 2, 3년 차 하자에 관한 부분을 파기하고, 이 부분 사건을 부산고등법원에 환송한다. 원고의 상고를 모두 기각한다.
Unofficial English translation
The part of the judgment of the court below in which the defendants lost, insofar as it concerns the defects of the second and third years arising from the construction works of the 3 and 5 contract sites in this case, is reversed, and this part of the case is remanded to the Busan High Court. All appeals of the plaintiff are dismissed.
Form of the test
Elements stated Stated in the decision
회생채권이 소멸시효기간 경과 전에 채무자 회생 및 파산에 관한 법률 제251조에 의하여 실권되었다면 더 이상 그 채무의 소멸시효 중단이 문제 될 여지가 없다.
Unofficial English translation
If a rehabilitation claim has been forfeited under Article 251 of the Debtor Rehabilitation and Bankruptcy Act before the extinctive prescription period expires, there is no longer any room for the interruption of extinctive prescription of that obligation to be at issue.
Factors
- 회생채권이 소멸시효기간 경과 전에 채무자 회생 및 파산에 관한 법률 제251조에 의하여 실권되었다면
- 회생채권자가 제3자를 상대로 한 소송 계속 중에 회생채무자를 상대로 소송고지를 하고
- 소송고지서에 실권된 회생채무의 이행을 청구하는 의사가 표명되어 있더라도
- 회생채권자는 그로써 다른 연대채무자나 보증인에 대하여 민법 제416조 또는 제440조에 따른 소멸시효 중단을 주장할 수 없다
Unofficial English translation
• If a rehabilitation claim has been forfeited under Article 251 of the Debtor Rehabilitation and Bankruptcy Act before the extinctive prescription period expires,
• a rehabilitation creditor, in the course of a lawsuit against a third party, gives notice of the lawsuit to the rehabilitation debtor, and
• even though the notice of lawsuit expresses an intention to claim performance of the rehabilitation claim that has been forfeited,
• the rehabilitation creditor cannot thereby assert against other joint and several obligors or sureties the interruption of extinctive prescription under Article 416 or Article 440 of the Civil Act
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 2016. 11. 9. 선고 2015다218785 판결(공2016하, 1880)
Unofficial English translation
Supreme Court Decision 2015Da218785 decided November 9, 2016 (Gong 2016 Ha, 1880)
Decisions referred to
대법원 2016. 11. 9. 선고 2015다218785 판결(공2016하, 1880)
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
If the rehabilitation creditor had served the notice of suit on the rehabilitation debtor before the claim was forfeited, would the same bar to interrupting limitation apply against the other joint debtors or guarantors?
The remand judgment of the Busan High Court on the remaining parts of the 2nd and 3rd year defects, and any later decision on when forfeiture under Article 251 of the Debtor Rehabilitation and Bankruptcy Act takes effect, would require this entry to be read again. An amendment to Article 251 or to Article 416 or 440 of the Civil Act would do the same.
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Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Busan High Court, in its judgment of 1 November 2018 (2018Na11834), held that the plaintiff's notice of suit on Namyang Construction in the prior suit had the effect of interrupting limitation, so that the limitation on its damages claim against the joint debtor Daechang Construction for the second and third year defects in the 3rd and 5th sections was interrupted under Article 416 of the Civil Act, and that this interruption also took effect against Joongheung Construction, the joint and several guarantor of Daechang Construction, and the Korea Construction Cooperative, the defect repair guarantor. It thereby held the defendants liable for those defects.
Supreme Court standard: The Supreme Court held that the claim against Namyang Construction had been forfeited by confirmation of the rehabilitation plan on 27 December 2010, because the plaintiff had neither filed it as a rehabilitation claim nor had it entered on the list of rehabilitation creditors, so that serving notice of suit on 6 December 2013 could not interrupt limitation, and the court below had misread the law on interruption of limitation in a way that affected the outcome. It reversed that part of the losing portion and remanded it. It found no error in rejecting the plaintiff's argument that the notice of suit interrupted limitation against the construction cooperative, and no error in limiting the damages to 70% on grounds of fairness and good faith, so the plaintiff's appeals were all dismissed.
Distinguishing conditions
- A rehabilitation claim that was filed as such and entered on the list of rehabilitation creditors, so that it was not forfeited under Article 251 before the limitation period expired.
- A claim whose limitation period had already expired before the rehabilitation plan was confirmed, since the Court relied on forfeiture occurring within the limitation period.
- An assertion of interruption made against the rehabilitation debtor itself rather than against another joint debtor or guarantor under Article 416 or 440 of the Civil Act.
Record verification notes
Establish from the rehabilitation case file the date the rehabilitation plan was confirmed and whether the claim was ever filed or listed, here confirmation on 27 December 2010 with no filing, and compute when the limitation period would have run out. Then fix the date the notice of suit reached the administrator, here an application on 22 November 2013 and delivery on 6 December 2013, and match each defendant's capacity, joint debtor, joint and several guarantor or defect repair guarantor, with the article the creditor invokes. Keep the 70% limitation of damages separate, since it turned on facts left to the court below.
From the official text
Points at issue
회생채권자가 제3자를 상대로 한 소송 계속 중에 회생채무자를 상대로 소송고지를 하고 소송고지서에 실권된 회생채무의 이행을 청구하는 의사가 표명되어 있는 경우, 다른 연대채무자나 보증인에 대하여 민법 제416조 또는 제440조에 따른 소멸시효 중단을 주장할 수 있는지 여부(소극)
Unofficial English translation
Where a rehabilitation creditor, in the course of a lawsuit against a third party, gives notice of the lawsuit to the rehabilitation debtor and the notice of lawsuit expresses an intention to claim performance of the rehabilitation claim that has been forfeited, whether the creditor may assert the interruption of extinctive prescription under Article 416 or Article 440 of the Civil Act against other joint and several obligors or sureties (negative)
Summary of the holding
회생채권이 소멸시효기간 경과 전에 채무자 회생 및 파산에 관한 법률 제251조에 의하여 실권되었다면 더 이상 그 채무의 소멸시효 중단이 문제 될 여지가 없다. 따라서 회생채권자가 제3자를 상대로 한 소송 계속 중에 회생채무자를 상대로 소송고지를 하고 소송고지서에 실권된 회생채무의 이행을 청구하는 의사가 표명되어 있더라도, 회생채권자는 그로써 다른 연대채무자나 보증인에 대하여 민법 제416조 또는 제440조에 따른 소멸시효 중단을 주장할 수 없다.
Order
원심판결의 피고들 패소 부분 중 이 사건 3, 5공구 공사에 발생한 2, 3년 차 하자에 관한 부분을 파기하고, 이 부분 사건을 부산고등법원에 환송한다. 원고의 상고를 모두 기각한다.
Unofficial English translation
The part of the judgment of the court below in which the defendants lost, insofar as it concerns the defects of the second and third years arising from the construction works of the 3 and 5 contract sites in this case, is reversed, and this part of the case is remanded to the Busan High Court. All appeals of the plaintiff are dismissed.
Provisions referred to
채무자 회생 및 파산에 관한 법률 제251조, 민사소송법 제84조, 민법 제174조, 제416조, 제440조
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