민법 제580조 소정의 매수인의 손해배상청구권의 행사기간 -대법원 2011. 10. 13. 선고 2011다10266 판결-

In the case where a defect of a certain object is not severely damaged up to the extent of achieving the purpose of purchase, the purchaser can exercise his/her damage indemnification rights without nullifying the purchase agreement. This paper investigates into how the damage indemnification rights of the purchaser under civil law §580 comes under the negative prescription of clause 1 of article §162, the justification issue of the sentence made on the negative prescription’s duration of 10 years lasting from when the purchaser received the target object from the seller as well as the limits in interpretation of the matter regarding it. The conclusion of the sentence made as a precedent regarding the above two points seems justified but it was discovered that there was insufficient logical evidence to back it up. It would have been more correct to suggest the following logical explanations. First, by demanding the settlement of the defect from the point where the purchaser found the said defect in the target object to the fixing of the defect within 6 months(taking care of the waste), the exclusion period under article §582 would have been adhered to whereby the rights of the purchaser would have been preserved. As such, the damage indemnification rights which would have been preserved through such actions comes under the negative prescription of 10 years considering the contents and characteristics of the right. Second, the damage indemnification rights of the purchaser under article §580 is a liability that has no expiration date so it is possible to exercise the right at the point of the occurrence or the existence of the defect. In this case, the question of the existence of the defect can be judged at the point of transfer of the target object so the negative prescription can be effective from the target object transfer point which would have guaranteed the right originally according to the principle of clause 1 of article §166. Here, the sentence where it stated that the negative prescription period of the damage indemnification rights of the purchaser is reckoned from the transfer point of the target object has no logical issues. However, as long as there is no legitimate reason for stopping or terminating the negative prescription, whether the purchaser’s best of intention is there or not regarding the existence of the defect, the negative prescription gets completed whereby the negative intention of the seller would be protected strongly. This directly goes against the principle concept of justice and fairness. This result can be considered to be the limitation of the interpretive theory of civil law. Therefore, it would be much more desirable to amend the starting point of the negative prescription to a more logical direction. That is, to implement a subjective system regarding the starting point of the negative prescription separate from the original cause of the bond.