시효는 일정한 사실상태가 오랫동안 계속한 경우에 그 상태가 진실한 권리관계에 합치하는지 여부를 묻지 않고 그 사실상태를 존중하여 그대로 권리관계로 인정하려는 제도이다. 대상판결은 채권 중 일부만을 청구하면서 소장에 청구금액을 확장할 뜻을 표시하였으나 소송이 종료될 때까지 청구금액을 확장하지 않은 경우, 채권 전부에 관하여 판결을 구한 것으로 볼 수 없어 나머지 부분에 대하여는 재판상 청구로 인한 시효중단의 효력이 발생하지 않는다. 그러나 채권자가 소송이 계속 중인 동안에 나머지 부분에 대하여 권리를 행사하겠다는 의사를 표시하였기 때문에, 이러한 최고에 의한 권리행사 상태는 소송이 계속 중인 동안에는 지속된 것으로 보고, 채권자는 해당 소송이 종료된 때부터 6개월 내에 민법 제174조에서 정한 조치를 취함으로써 나머지 부분에 대한 소멸시효를 중단시킬 수 있다고 한다. 민법 제174조의 최고는 채무자에 대하여 채무이행을 구한다는 채권자의 의사통지이다. 최고에는 특별한 형식이나 행위 당시 시효중단의 효과를 발생시킨다는 점을 알았거나 의욕하였을 것을 요구하지 않는다. 따라서 소장에 청구금액을 확장할 뜻을 표시하였으나 소송이 종료될 때까지 청구금액을 확장하지 않은 경우에는 최고의 효력을 인정하더라도 시효제도의 취지에 반하지 않는다고 할 것이므로, 대상판결의 태도는 타당하다.
Prescription is a legal device designed to respect and recognize a factual state, if the state has continued for a long time, as a relationship of rights and duties without asking whether or not the state corresponds to the true relationship of rights and duties. The Supreme Court's Ruling No. 2019Da223723 dated February 6, 2020 says that if the creditor stated, in the complaint where he demanded the payment of only a portion of debts, that he intended to extend the demand, but failed to do so until the lawsuit ended, it is not considered that he made a claim for all the debts he was owed, and thus the interruption of prescription due to the demand by way of judicial proceedings does not take effect on the remaining debts. The ruling, however, notes that since the creditor expressed his intention to exercise his rights over the remaining debts while the lawsuit was still in progress, his exercise of rights by this peremptory notice is considered to have continued during the lawsuit, and also that the creditor can interrupt extinctive prescription for the remaining debts within six months after the completion of the lawsuit by taking the measures stipulated in Article 174 of the Civil Act. A peremptory notice, in accordance with the same Article, is the creditor's act of notifying the debtor that he intends to require the payment of debts. A peremptory notice does not require a specific form or the creditor's knowledge or willingness regarding its effect of interrupting prescription at the time of the notification. Therefore, in the case that a creditor indicates his intention to extend his demand in the complaint but failed to do so until the completion of the lawsuit, it is deemed that recognizing this indication of intention to have effect as a peremptory notice is not contrary to the purpose of the prescription system. Therefore, the approach of the ruling is justifiable.
Prescription is a legal device designed to respect and recognize a factual state, if the state has continued for a long time, as a relationship of rights and duties without asking whether or not the state corresponds to the true relationship of rights and duties. The Supreme Court's Ruling No. 2019Da223723 dated February 6, 2020 says that if the creditor stated, in the complaint where he demanded the payment of only a portion of debts, that he intended to extend the demand, but failed to do so until the lawsuit ended, it is not considered that he made a claim for all the debts he was owed, and thus the interruption of prescription due to the demand by way of judicial proceedings does not take effect on the remaining debts. The ruling, however, notes that since the creditor expressed his intention to exercise his rights over the remaining debts while the lawsuit was still in progress, his exercise of rights by this peremptory notice is considered to have continued during the lawsuit, and also that the creditor can interrupt extinctive prescription for the remaining debts within six months after the completion of the lawsuit by taking the measures stipulated in Article 174 of the Civil Act. A peremptory notice, in accordance with the same Article, is the creditor's act of notifying the debtor that he intends to require the payment of debts. A peremptory notice does not require a specific form or the creditor's knowledge or willingness regarding its effect of interrupting prescription at the time of the notification. Therefore, in the case that a creditor indicates his intention to extend his demand in the complaint but failed to do so until the completion of the lawsuit, it is deemed that recognizing this indication of intention to have effect as a peremptory notice is not contrary to the purpose of the prescription system. Therefore, the approach of the ruling is justifiable.
