權利行使期間에 관한 爭點과 民法改正 方案 - 소멸시효 관련 논의에 부수하여 -

Abstract

The discussion to amend the statutory limitation provisions in the Korean Civil Code should not be limited to a consideration of the statute of limitations per se, but it should include possible amendment of other forms of exclusionary period in the Code. Especially it is important to find a way to amend the statutory limitation provisions in Civil Code in regard of long lurking damages and continuous frauds, duress and concealment. The disadvantages that child victims suffer in regard of limitation period should also be removed. In order to achieve this goal, we recommend an amendment of the limitation-related provisions in torts law by rationalizing the commencement of limitation period and actual calculation of the period. The trends of civil law amendments in Germany, France, and other parts of continental jurisdictions that incorporated subjectivity principle, and the examples of US, UK and Canadian legal system that widely adopted discovery rule or discoverability principle are worth considering in the Korean civil law amendment. The provisions of exclusionary period also need similar modification. The recommendations of this article for Civil Code amendment includes:First, there should be a new section included as an exception to the objective limitation period so as to give remedies concerning the health-related damages caused by environmental pollution or the damages of occupational diseases where damages are lurking for a long time before discovered. Second, when the victim is a child in a tort case where the right of sexual self-determination is infringed, there should be a provision to protect the child's right not to be time barred until he become adult. For example, there can be a provision that postpones the limitation period until the child reaches the age of adult so that the child can claim the damages after he or she become an adult. Third, in cases of fraud, duress and other tortious activities that have existed continuously, the victim should be able to claim damages or to cancel the contract when the situation ends, even if the 10-year long-term objective limitation period has passed. Finally, the amendment of the provisions of exclusionary period in the Korean Civil Code could be considered after a general agreement is reached for law reform in terms of the relationship between the breach of duty and the rights stemming out of encumbrances. This article discusses above points based on an analysis of Korean legal theory, Korean cases, and comparative legal research of the law of Germany, France, United States, United Kingdom, and Canada.