대여금
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
Purport of claim and appeal
The first instance court.
1. The plaintiff's assertion that around July 10, 2007, the plaintiff remitted 9.3 million won to the defendant's passbook to the defendant and lent 70 million won in cash to the defendant (hereinafter "the loan of this case"). Thus, the defendant is obligated to pay the above loan of 10 million won and damages for delay to the plaintiff.
On the other hand, the defendant asserts that the borrower of the loan of this case only lent the passbook to C, and that there was no obligation to repay the loan of this case since he borrowed the loan of this case from the plaintiff.
2. Determination
A. In case of remitting money to another person's deposit account, the remittance can be made based on various causes, such as loan for consumption, donation, repayment, simple delivery, etc. Therefore, even if there is no dispute as to the existence of money between the parties, the plaintiff asserts that the cause of receiving money is a loan for consumption, while the defendant asserts that it was received due to a loan for consumption if it is asserted that it was a loan for consumption.
(see, e.g., Supreme Court Decision 2012Da30861, Jul. 26, 2012). (B)
According to the statement in Gap evidence No. 1, the plaintiff could be acknowledged that he remitted KRW 9.3 million to the defendant on July 10, 2007. However, there is no evidence to acknowledge that the plaintiff remitted the above KRW 9.3 million to the defendant who is not C, or that the plaintiff lent the above KRW 9.3 million to the defendant, or that the plaintiff lent the above KRW 700,000 in cash to the other defendant.
The defendant asserts that even if the plaintiff lent the loan of this case to the defendant, the period of extinctive prescription under Article 64 of the Commercial Act is applied to the claim arising out of a commercial activity, since the period of extinctive prescription under Article 64 of the Commercial Act is five years, and Article 47 (1) of the Commercial Act is a commercial activity performed by the merchant for business.