공시송달에 의한 부동산 경매에서 잉여금이 공탁된 경우 공탁금지급청구권의소멸시효 - 대상결정 : 대법원 2024. 4. 30. 자 2023그887 결정 -

This article analyzes a Supreme Court decision addressing the commencement of the statute of limitations for a claim to withdraw deposited surplus funds arising from a real estate auction conducted by service by public notice. In the case at issue, the surplus generated in the auction procedure was deposited as an execution deposit, and the Court held that, once notice of deposit was validly effected by public notice, the statute of limitations began to run from that time, even if the claimant did not in fact become aware of the deposit. The decision reaffirmed the Court’s established position that, in determining the commencement of prescription, the decisive criterion is the absence of legal impediments to the exercise of the right, rather than the claimant’s actual awareness or factual difficulties. However, where service by public notice is used throughout the auction procedure-from the commencement of the auction to the distribution and deposit of surplus funds-the debtor or interested party may remain unaware not only of the progress of the procedure but also of the very existence of the claim to withdraw the deposited funds. This article questions whether it is appropriate to determine the starting point of prescription solely on a formal basis without sufficiently considering the particular features of such cases. To this end, the article examines the general principles developed in case law regarding the commencement of prescription, as well as exceptional approaches in related contexts, including cases recognizing restoration of lapsed procedural periods where service by public notice was involved. It further analyzes whether the limitations imposed on a party’s ability to recognize the existence of a right due to service by public notice should be taken into account in the substantive law assessment of prescription. In addition, given that the completion of prescription for a claim to withdraw deposited funds ultimately results in the funds reverting to the national treasury, the article considers whether the interpretation adopted in the decision is fully consistent with the underlying justifications of the prescription system. In conclusion, this article suggests that, in cases involving surplus deposits arising from real estate auctions conducted by service by public notice, there is room for a more substantive interpretation of the phrase “when the right may be exercised.” It argues that future cases should adopt an interpretative approach that reflects the specific procedural context and the practical constraints on the claimant’s ability to exercise the right.