時效消滅한 어음債權을 被保全權利로 한 假押留의 原因債權 時效中斷(대상판결 : 대법원 2007.9.20. 선고, 2006다68902 판결 [대여금])

Having declared in a decision of 1999 that the period of limitation of the underlying claim is interrupted by filing the attachment to secure the right contained in the promissory note, the Supreme Court of Korea concluded in the decision of 2007 commented here that the period of limitation above mentioned is not interrupted if the right under this promissory note has already been prescribed. But this decision in 2007 could be criticized for two reasons. First of all, the decision of 2007 said as its first ratio decidendi that the attachment filed to secure the right under the promissory note which is already prescribed could not be considered as an exercise of that right, nor of the underlying claim. However, as the intention to exercise the underlying claim is clearly expressed by filing the attachment to secure the right under the promissory note even if this right is already prescribed, the period of limitation of the underlying claim should be considered to be interrupted. The second ratio decidendi explained in a way that the personal defense based on the prescription of the underlying claim against the exercise of the right contained in the promissory note has become irrelevant (unnecessary) due to the prescription of the right contained in the promissory note itself. But this explanation was of only secondary importance for making the decision. The interruption of the period of limitation for the underlying claim by the attachment to secure the right under the promissory note is just to simplify the exercise of this right, allowing not to exercise both this right and the underlying claim in order to get rid of the personal defense. And the opinion for this personal defense seems not be well-founded.