「유럽계약법원칙」의 소멸시효규정 -우리 민법에의 시사를 덧붙여-

Abstract

This article deals with the provisions on extinctive prescription (Chap. 14) of

the Principles of European Contract Law (PECL III), which was published in

March 2003 as one of possible frameworks for a future Draft European Civil

Code. It is made of two parts. One is the summary of the prescription rules of

PECL III with its underlying policy considerations, and the other is evaluation

from the viewpoint of a Korean civilist, specially in terms of the revision work

on the Korean Civil Code (KCC) now in process.

An important feature of the rules in Chap. 14 of PECL III is that the

prescription regime is very streamlined compared to that existing in many

European systems. In particular, there is only one period of prescription (3 years)

for all claims, except those based on judgement (10 years)(Arts. 14:201, 14:202).

The hardship which this short general prescription period may cause to the

creditors, who are barred by prescription although able, even after the lapse of

many years, to establish the claim, should be counterbalanced by applying the

discoverability criterion for the running of the prescription period. So Art. 14:301

of PECL III provides that the running of the period of prescription is suspended

as long as the creditor does not know of and could not reasonably know of the

identity of the debtor and the facts giving rise to the claim. It is because unless

the creditor has previously had a fair chance of pursuing the claim, prescription,

which can effectively amount to an act of expropriation for the general interest...