時效中斷의 사유인 訴訟上 行爲 - ‘請求’

• 발행기관: 한국민사소송법학회
• 저자명: 나현
• 간행물 정보: 『민사소송』제11권 제1호, 125~156쪽, 전체 32쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.05.30

영문 초록

The Korean Civil Code provides a limitations period after which period an obli-geeʼs rights extinguish upon the obligorʼs contest, if the obligee does not exercise the rights during such a period of time. It also provides for a limitations period, 10 or 20 years, after which period an occupier of a piece of realty takes title by adverse possession, subject to other additional requirements. The Code also pro-vides that a “request” by an obligee may be deemed a basis for the tolling of such limitations periods. This paper focuses on the issue of under what situations where a partyʼs con-duct during litigation could constitute the request. With respect to “request,” based on the notion that it is necessary to recognize the tolling effect in the case of an obligeeʼs exercise of her rights in litigation, the paper construes the term “request” broadly, including not only the plaintiffʼs com-mencement of a court case, but also the defendantʼs trial conduct such as raising a defense and using her own rights to defend the case, affirmatively responding to the plaintiffʼs allegations. It is to be noted that the Supreme Court has taken the same position since a decision in 1993. Such tolling should be deemed to take place, in the case of “request,” at the submission of a complaint, at the submission of an application for amendment, or at the submission of a brief containing the allegation of such rights.

목차

Ⅰ. 論議의 方向

Ⅱ. 종래 論議의 槪要 및 檢討

Ⅲ. 시효중단사유인 ʻ請求ʼ로 볼 수 있는 소송상 행위

Ⅳ. 共同訴訟人 및 參加人의 소송상행위와 시효중단

Ⅴ. 시효중단의 效力發生時點

Ⅵ. 要論

참고문헌

키워드

소멸시효 취득시효 시효중단 청구 응소행위 권리행사설 The limitations period for right-extinguishing The limitations period for right-acquiring The tolling of limitations periods Request by obligee The defendantʼ s trial conduct to defend the case The theory of right exercising