消滅時效와 除斥期間에 關한 比較考察

Abstract

Ⅰ. Introduction With regard to the expiring prescription and the limitation, the problems are : What are the difference between ther what are the respective abjectives of right expecially in relation to the Gestaltungsrecht, Wnat are the limitations attached to the Gestaltungrecht, how to interprete them when there is no provision thereof, and how to set the period of Anspruch resulting from the exercise of Gestaltungsrecht. The purpose of this tiesis is, to study the interpretation by clarifying the relations of right, characteristic and history of the limitation system. Ⅱ. History of the limitation system and legislative instences Under the Roman law, the Lrsitzung, the limitation of right of action and the limitation of servitude were developed in the separate systems. Limit ation of right of action was in reality the combination of the Substanzrecht and the right of litigation. This was overwhelming in the days of common law in Germany and was succeeded to the present-day German Civil Code, and the Civil Code of Korea was also influenced by this notion. The expiring prescription is the Anspruch in the German civil law, but in France the right of action. Ⅲ. The Conception of expiring prescription and limitation The expiring prescription is a system to limit the period for exercising a right when a defendent is in a difficult Pasition to show proLitable a proof him after a considerable period. The limitation is to make a man exercise his right in a certain period without any interval, in order to settle a legal relation as soon as possible. This mean to settle an unstable legal relation resulted from the one-sided expression of will by claimer in a shorter period. They are similar in limitation of the exercise of power. This is the difference that no inter ruption is allowed in the case of limitation, and the validety is naturally maintained without any retroachivity. If there is such a term as "prescription" in the provisions of the Civil Code, it means the expiring prescription, and if not, it means the limitation. This was the traditional theory, but this has to be decided upon considering the quality of right and the principle of system. Ⅳ. Limitation of period for Anspruch The epiring prescription in our Civil Code is influenced by that of the German Civil Codo, and its Character and purpose is same. Therefore, the Anspruch in subject to the expiring prescription. In the case of Anspruch the provision prescribing a shorter period without using the word "prescription" is generally said to be a limitation. The precedents have revealed that the period is regarded as a peried for exercising the right, and the exercise of the right is not limited to the matter of judgement. However, such an interpretation is contrary to the character of limitation. Ⅴ. The Limitation of peried for Gestaltungsrecht The limitation of the Gestaltungsrecht which enters into force upen the exercise and confirmation by the judgement is the limitation of peried for lawsuit, and the expiring prescription of Anspruch is same as the limitation. Therefore, no expiring prescription can be applicable to the Gestaltungsrecht. Gestaltungsrecht itself has no limitation of Peried, and it must be the expiring prescription or the limitation of Anspruch resultod from its exercise. Ⅵ. Conclusion It is not right to ieterprete the provisions strictly according to the articles of the Civil Code, and it is proper that the conclusion should be made in accordance with the theoretical propriety and the reality. According to the above interpretation, the Anspruch is related to the the expiring prescription and-the limitation is interpreted as a fixed period during which a right may be exercise by a lawsuit. The Gestaltungsrecht itself has no limitation of period, and it must be interpreted as the expiring prescription or the limitation of Anspruch resulted from the exercise of Gestaltungsrecht.