대여금
1. Revocation of the first instance judgment.
2. The plaintiff's claim is dismissed.
3. All costs of the lawsuit shall be borne by the Plaintiff.
1. On June 16, 2004, while the Plaintiff operated an entertainment business (C), the Plaintiff was issued with a promissory note No. 30 million won by lending D as the principal debtor and the Defendant, etc., who is an employee of said business, as the guarantor (hereinafter “instant loan”), and issued to the issuer and the Plaintiff a promissory note No. 4 as the payee.
In the Plaintiff’s account book, the principal of the instant loan shall be reduced to KRW 13 million on March 16, 2006, and the record stating that the Plaintiff received a total of KRW 3.7 million from the Defendant by October 5, 2007.
[Reasons for Recognition: Each entry in Gap evidence 1 or 4, and the purport of the whole pleadings]
2. Assertion and determination
A. The Plaintiff asserted by the parties against the Defendant that the remainder of KRW 9.3 million (=13 million) out of the instant loan was sought against the Defendant, whereas the Defendant asserted that the instant loan constitutes illegal consideration or that the extinctive prescription of KRW 10,000 was completed as a claim for the bills of exchange or a claim for the bills of exchange with three years as a claim for illegal consideration.
B. According to the above facts, the defendant is obligated to pay 9.3 million won and delay damages for the loan of this case, unless there are special circumstances.
Meanwhile, a claim arising from an act that constitutes a commercial activity is also a commercial claim only for one of the parties. The commercial activity includes not only the basic commercial activity falling under any of the subparagraphs of Article 46 of the Commercial Act, but also ancillary commercial activities conducted by merchants for business purposes (see, e.g., Supreme Court Decision 97Da9260, Aug. 26, 1997). Even if a merchant does not engage in lending money, there may be cases where he/she lends money for the purpose of acquiring interest because he/she has lent money for business interests or for convenience or has sufficient business funds. Thus, it is presumed that a merchant’s lending of money is conducted for business purposes unless there is any counter-proof. < Amended by Act No. 9270, Dec. 2