김증한 교수의 소멸시효론

The Extinctive Prescription Theory of Kim Jeunghan

Since the Enactment of the Korean Civil Code in 1958, there has been is a fierce controversy over the legal effect of extinctive prescription. According to the absolute extinction theory, the right which is subject to extinctive prescription ceases to exist by the lapse of prescription period per se. In contrast, the relative extinction theory asserts that the invocation of extinctive prescription by duty beares is necessary for the right to become extinct. Professor Kim Jeunghan had advocated the relative extinction theory for the first time in 1958 against the then prevailing absolute extinction theory. His theory exerted great influence upon the following academic debate and court decisions. Although textual and historical interpretation seem to support the absolute extinction theory, the relative extinction theory is more convincing for the following reasons. From the perspective of systematic interpretation, the absolute extinction theory cannot explain why there should be invocation of extinctive prescription only by duty bearers, not by right holders. It can adequately explained by the relative extinction theory. Furthermore, the relative extinction theory can also be justified by teleological interpretation. The purpose of the extinctive prescription is to protect duty bearers. Therefore, the related decision should be deferred to duty bearers rather than to be made by operation of law. This aim can be achieved by requiring the invocation of extinctive prescription by duty bearers in accordance with the relative extinction theory.