프랑스 민법에서 소멸시효 완성의 효과

Abstract

In this article, the author examines the effects of liberative prescription in French civil law and its implications for the interpretation of the Korean Civil Code. The conclusions can be summarized as follows:
 1. The question of whether a right is extinguished by the expiration of a prescription period, whether the expiration must be pleaded as a defense, and who may plead it, is a long-standing issue that has been debated since Roman law.
 2. The provisions of the French Civil Code regarding the effects of liberative prescription generally align with the absolute theory in Korean law. The expiration of a prescription period results in the extinguishment of the right or its action, allowing the benefit of prescription to be claimed by other interested parties in addition to the debtor. However, the court cannot consider it ex officio, and restitution is not allowed if the extinguished obligation has been paid. In contrast to our absolute theory, French law differs in that the debtor's other creditors can claim the benefit of prescription only to the extent that the debtor is insolvent.
 3. The following observations can be drawn from French civil law for the interpretation of the Korean Civil Code. First, the necessity of claiming the benefit of prescription is closely related to the possibility of its waiver, and under the absolute theory, therefore, the defense of prescription is treated as a procedural matter concerning the extinguished rights. Second, in view of Article 404 (2), a debtor should be able to contest a defense of prescription against the oblique action of their creditor's creditor if the latter's claim is already time-barred. Third, claiming the benefit of prescription by other creditors of the debtor in question, including mortgagees in inferior rankings, is permissible, but only to the extent that the debtor is insolvent, aligning with the policy of the oblique action.