A. The fact that the Plaintiff made up a loan certificate (Evidence A 3) that the Plaintiff lent KRW 36 million to the Defendant from February 2008 to August 2008, and the Defendant borrowed KRW 36 million from the Plaintiff to the Plaintiff on November 24, 2008 in relation to the above loan to the Plaintiff on November 24, 2008, and that “the principal (the Defendant) borrowed KRW 36 million from the Plaintiff to pay the above money by February 10, 2009, and promised to pay the above money to the Plaintiff by February 10, 2009,” is not in dispute between the parties, or can be acknowledged in full view of the purport of the entire pleadings as stated in the evidence No. 1 to 3.

B. According to the above facts, the Defendant is obligated to pay to the Plaintiff the above borrowed amount of KRW 36 million and damages for delay at the rate of 15% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from October 20, 2017 to the date of full payment, as the Plaintiff seeks.

C. The defendant's assertion 1) asserts that the above loan certificate is null and void since it was made by the plaintiff's assault and intimidation. However, there is no other evidence to acknowledge it. Accordingly, this part of the defendant's assertion cannot be accepted. 2) The defendant at the time, as the representative director of the C&A, borrowed the above money from the plaintiff as the representative director of the C corporation, and prepared a loan certificate. Thus, the defendant asserts that the above debt is a commercial debt and the five-year extinctive prescription period has elapsed from February 11, 2009.

In this regard, even if the company is deemed as a merchant under the Commercial Code, the representative director, who is an institution of the company, is not a merchant, and even if the representative director is borrowed for the purpose of using the company's funds, the loan obligations cannot be viewed as commercial obligations because they do not constitute commercial activities.

Supreme Court Decision 2014Da70184 Decided March 26, 2015, etc.