시효 및 제적치간에 관한 민법개정시안 - 2010년 1월 29일 개정시간의 조문내용과 개정이유를 중심으로 - (Civil Code Revision Draft on the Prescription and Non-suspendable Periods(2010) - Draft Text on 29 January 2010 and its Purpose for Revision -)

서지정보

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· 저자명 : 김성수

초록

The Ministry of Justice organized the reform committee for the civil Code, in February 2009 for the new reform draft of the civil Code, which would work for 5 years, in the first year, it would review the general part(Part I) of the civil code. There were six subcommitte for the first year, the fourth subcommitte of which was going to examine the topics :prescription extinctive, acquisitive prescription, Non-suspendable Periods and other periods. This group worked from February 2009 to February 2010, only one year.
The reform orientation of the subcommitte was, first, the modernization and internalization(Globalization) of the civil code, which is the common aim of the all 6 committee. For these aim, when the present draft about the prescription extinctive was being prepared, consulted were the newly presented rules, for example the german civil Code(2002), the french civil Code(2008), the Principles of European Contract Law(2002), the Unidroit Principles(2004), the Draft Common Frame of Reference(DCFR)(2009)and so on. Some reform drafts in Japan, China is also consulted. Another fundamental aims of our reform were ① simplification, unification and clarity of the prescription law ② the balance between the debtor and the creditor ③ the plain text style of the civil Code etc.
The main features of the present reform draft are as follows : First of all, in the prescription extinctive, the draft text puts forward a general period of 5 years from 10 years of the Civil code, which is by the legislator agreed that it is appropriate to reduce the period. The starting point of the prescription period is also changed from the time when his rights arises to the time of the creditors knows. Maximun length of period,which is to be 10 years, is newly introduced and the period of prescription, cannot be extended, by suspension of its running or postponement of its expiry under this draft, to more than 10 years.
Moreover these all are regulated together in one single article(draft article.
162); But Short extinctive Prescription for 3 or 1 years(articles 163 and 164 of the present Civil Code) is abandoned for the merit of simplification of a prescription period.
As a ground of hindrance of the running of the prescription period, the 2 types, interruption and suspension of the prescription extinctive according to our existing Civil Code, are changed into the 3 types, suspension,postponement of expiry and renewal. Especially important is that it is appropriate to convert the majority of what are now grounds of interruption of prescription into grounds of its suspension.
As a result, the grounds of suspension of prescription extinctive are as follows : bringing an action (draft article 168, para 1)(① Exercise of right by judicial prceedings(draft article 168 para 1) ② Application of an order for payment(draft same article, para 2) ③ Compromise in court,arbitration proceedings, meditation proceedings, and other exercise of right by judicial proceedings having the same effect as a judgement(draft same article, para 3) ④ Intervention in reorganization proceedings, bankruptcy proceedings or reorganization proceedings by individual(draft same article,para 4). Furthermore, the effect of suspension is clearly regulated by new article(draft article 169). On the other hand, the coexistence of suspension of prescription and postponement of expiry, which is newly introduced, are as follows : ① Provisional Attachemnt, provisional disposition(draft article 170) ② Claims between spouses(draft article 171) ③ Claims between person subject to an incapacity or person under disability and representative(draft article 171, section 1, article 171, section 2) ④Negociations(draft article 172). In the following, the grounds of postponement of expiry of prescription are as follows : Demand by notice,impedement beyond creditors's controlㆍIncapacity(draft articles 173, 174and 175) and Deceased's estate(draft article 176). At the same time, the grounds of renewal of prescription extinctive was as follows :acknowledgement by a debtor of his creditors' allegation(projet article. 177)and civil compulsory execution to the court(draft article 178).
In addition, the effect of prescription are newly introduced according to the so-called relative extinctive effect(draft article 179), which has been debated for a long time.
Next, it is added the possession in bona fide manner and without negligence as the conditions of the acquisitive prescription of immovables(article 245 section 1 of the civil Code and draft article 245,section 1). On the contrary, a possession presumed to be with the intention of holding as owner is omitted(draft article 197).
About the exercising period of the some special rights, which has become the very limited reform about 2 articles. To begin with, in the lapse of Right of Voidance, the right shall be exercised within 3 years,but newly changed into 20 years from 10 years. On the other hand, the right of claim damages which has arisen from an unlawful act shall elapse by prescription if not exercised within 5 years(from 3 years) from the time when the injured party becomes aware of such damages and of the person who caused it, or within 20 years(from 10 years) from the time when the act was committed(draft article 766, sections 1 and 2). with the exception of the unlawful act to a minor, especially the suspension of the period until she/he become a major and the sexual infringement to her/him.
It is to be hoped that this paper will serve as a platform from which more studies, debates and critics of greater depth and specificity may be given, for the more perfect reform of our civil Code.

영어초록

The Ministry of Justice organized the reform committee for the civil Code, in February 2009 for the new reform draft of the civil Code, which would work for 5 years, in the first year, it would review the general part(Part I) of the civil code. There were six subcommitte for the first year, the fourth subcommitte of which was going to examine the topics :prescription extinctive, acquisitive prescription, Non-suspendable Periods and other periods. This group worked from February 2009 to February 2010, only one year.
The reform orientation of the subcommitte was, first, the modernization and internalization(Globalization) of the civil code, which is the common aim of the all 6 committee. For these aim, when the present draft about the prescription extinctive was being prepared, consulted were the newly presented rules, for example the german civil Code(2002), the french civil Code(2008), the Principles of European Contract Law(2002), the Unidroit Principles(2004), the Draft Common Frame of Reference(DCFR)(2009)and so on. Some reform drafts in Japan, China is also consulted. Another fundamental aims of our reform were ① simplification, unification and clarity of the prescription law ② the balance between the debtor and the creditor ③ the plain text style of the civil Code etc.
The main features of the present reform draft are as follows : First of all, in the prescription extinctive, the draft text puts forward a general period of 5 years from 10 years of the Civil code, which is by the legislator agreed that it is appropriate to reduce the period. The starting point of the prescription period is also changed from the time when his rights arises to the time of the creditors knows. Maximun length of period,which is to be 10 years, is newly introduced and the period of prescription, cannot be extended, by suspension of its running or postponement of its expiry under this draft, to more than 10 years.
Moreover these all are regulated together in one single article(draft article.
162); But Short extinctive Prescription for 3 or 1 years(articles 163 and 164 of the present Civil Code) is abandoned for the merit of simplification of a prescription period.
As a ground of hindrance of the running of the prescription period, the 2 types, interruption and suspension of the prescription extinctive according to our existing Civil Code, are changed into the 3 types, suspension,postponement of expiry and renewal. Especially important is that it is appropriate to convert the majority of what are now grounds of interruption of prescription into grounds of its suspension.
As a result, the grounds of suspension of prescription extinctive are as follows : bringing an action (draft article 168, para 1)(① Exercise of right by judicial prceedings(draft article 168 para 1) ② Application of an order for payment(draft same article, para 2) ③ Compromise in court,arbitration proceedings, meditation proceedings, and other exercise of right by judicial proceedings having the same effect as a judgement(draft same article, para 3) ④ Intervention in reorganization proceedings, bankruptcy proceedings or reorganization proceedings by individual(draft same article,para 4). Furthermore, the effect of suspension is clearly regulated by new article(draft article 169). On the other hand, the coexistence of suspension of prescription and postponement of expiry, which is newly introduced, are as follows : ① Provisional Attachemnt, provisional disposition(draft article 170) ② Claims between spouses(draft article 171) ③ Claims between person subject to an incapacity or person under disability and representative(draft article 171, section 1, article 171, section 2) ④Negociations(draft article 172). In the following, the grounds of postponement of expiry of prescription are as follows : Demand by notice,impedement beyond creditors's controlㆍIncapacity(draft articles 173, 174and 175) and Deceased's estate(draft article 176). At the same time, the grounds of renewal of prescription extinctive was as follows :acknowledgement by a debtor of his creditors' allegation(projet article. 177)and civil compulsory execution to the court(draft article 178).
In addition, the effect of prescription are newly introduced according to the so-called relative extinctive effect(draft article 179), which has been debated for a long time.
Next, it is added the possession in bona fide manner and without negligence as the conditions of the acquisitive prescription of immovables(article 245 section 1 of the civil Code and draft article 245,section 1). On the contrary, a possession presumed to be with the intention of holding as owner is omitted(draft article 197).
About the exercising period of the some special rights, which has become the very limited reform about 2 articles. To begin with, in the lapse of Right of Voidance, the right shall be exercised within 3 years,but newly changed into 20 years from 10 years. On the other hand, the right of claim damages which has arisen from an unlawful act shall elapse by prescription if not exercised within 5 years(from 3 years) from the time when the injured party becomes aware of such damages and of the person who caused it, or within 20 years(from 10 years) from the time when the act was committed(draft article 766, sections 1 and 2). with the exception of the unlawful act to a minor, especially the suspension of the period until she/he become a major and the sexual infringement to her/him.
It is to be hoped that this paper will serve as a platform from which more studies, debates and critics of greater depth and specificity may be given, for the more perfect reform of our civil Code.

참고자료

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