시효이익 포기 추정 법리의 종언 - 대법원 2023다240299 전원합의체 판결과 독일법 비교 -

This article examines the Korean Supreme Court en banc decision of July 24, 2025 (Case No. 2023Da240299), which abolished the long-standing presumption that a debtor’s acknowledgment or partial payment after the completion of extinctive prescription (statute of limitations) constitutes a waiver of the benefit of prescription. For nearly fifty-eight years, Korean case law had relied on this presumption, often restricting the debtor’s right of defense regardless of actual intent and raising concerns of abuse in debt collection practices. The en banc decision directly addressed these concerns by abandoning the presumption and establishing a new standard: waiver must be determined through a comprehensive assessment of specific circumstances, including the debtor’s motive, voluntariness, proportion of repayment, lapse of time, and the parties’ conduct. This approach strengthens the debtor’s autonomy while safeguarding the creditor’s reliance, thereby prompting a fundamental reconsideration of the structure and function of the prescription system. Doctrinally, the decision reflects a shift from the absolute extinction theory toward the relative extinction theory, reconstructing extinctive prescription as a mechanism primarily designed to guarantee the debtor’s right of defense. In comparative perspective, German law conceptualizes prescription as a defense right (Leistungsverweigerungsrecht) and requires explicit intent for waiver. German practice also recognizes various forms of private autonomy, such as waiver agreements (Verjährungsverzicht), standstill agreements (Stillhalteabkommen), and limitation agreements (Verjährungsvereinbarung), which enhance flexibility. Accordingly, this article argues that the ruling is not merely a precedent reversal but a constitutional and institutional turning point that calls for modernization of the extinctive prescription regime in Korea. Future reforms should aim at simplifying statutory provisions, clarifying the scope of the right to invoke prescription, and systematically incorporating private autonomy. Through such reforms, the system can evolve into a balanced mechanism that ensures both legal certainty and transactional security while protecting the debtor’s right of defense and the creditor’s legitimate expectations.