2. The costs of appeal shall be borne by the Defendant.

The purport of appeal: Revocation of the part against the defendant in the judgment of the court of first instance, and the plaintiff's claim corresponding to the revoked part is dismissed (the defendant appealed against the judgment of the court of first instance and sought revocation of the judgment of the court of first instance and dismissal of the plaintiff's claim, but in the judgment of the court of first instance, some winning parts of the defendant are included, and thus

The reasoning for this Court’s reasoning is as follows, in addition to adding the following judgments to the Defendant’s new argument in the appellate trial, and therefore, it is identical to the reasoning of the judgment of the first instance. Therefore, this Court’s reasoning is cited by the main sentence of Article 420

2. Additional matters to be determined;

A. The defendant's assertion

1) Claim on a contract with a third party

The Plaintiff’s obligation to lend the instant project cost is based on the instant construction contract (Articles 4(2) and 17(2) between the Plaintiff, a contract for a third party, and the search zone 4, and the Defendant is the beneficiary of the said contract. However, since the Defendant participated as a witness of the said contract, the Defendant’s right against the Plaintiff became final and conclusive without having expressed his/her intent

On October 19, 2004, a search zone 4 cooperative requested the plaintiff to pay 174 million won directly to the defendant, such as the union operation expenses and service expenses supported by the search zone 4 cooperative.

Therefore, the Plaintiff’s obligation to pay KRW 174 million to the Defendant, such as the above operating expenses, does not affect the conclusion of the instant construction contract between the Plaintiff and the Association of Zone IV, even if the instant construction contract was terminated.

2) Claim for the completion of extinctive prescription

The Plaintiff’s claim for the instant loan against the Defendant was completed by five years of extinctive prescription with commercial bonds, and thus, the Plaintiff’s claim cannot be complied with.

B. Determination

1) First, we examine the Defendant’s assertion of contract for a third party.

A) As seen earlier, Article 4(2) of the instant construction contract provides, “The relocation expenses of the members of the search zone 4 association and the project promotion expenses of the search zone 4 association shall be paid to the Plaintiff to the members of the search zone 4 association and the Defendant, the project execution agent, and in this case the search zone 4 association and the members of the association shall reimburse the principal and interest of the relocation expenses and the principal and interest of the project promotion expenses borrowed from the Plaintiff pursuant to Articles 39 and 40.” Article 17(2) provides, “The execution expenses for the Defendant shall be claimed by the Plaintiff in consultation between the search zone 4 association and the Defendant, and the Plaintiff shall be paid to the Defendant.”

B) According to the above provisions, the Plaintiff agreed to lend project promotion expenses, including the service promotion expenses of the search zone 4 association, and the moving expenses of the association to the search zone 4 association, but the method of payment can be deemed to have been paid directly to the search zone 4 association or through the Defendant, a project implementation agent, who is the project implementation agent (the Plaintiff may directly lend the project promotion expenses to the Defendant pursuant to the above provision, but is not the case in this case). Therefore, in a case where the Plaintiff lends the search zone 4 association, etc., the Plaintiff is authorized to demand the Plaintiff to lend the project promotion expenses to the search zone 4 association to the Plaintiff as the search zone 4 association, and even if the Plaintiff pays the money to the Defendant in response to the demand of the search zone 4 association to lend the project promotion expenses, it is merely a method of payment of loans through the agent or assistant, and even if the Plaintiff did not have any judicial right against the Plaintiff, the issue of nonperformance of its duty is between the Plaintiff and the search zone 4 association, and the Plaintiff does not bear any monetary obligation against the Defendant.

C) Meanwhile, as alleged by the Defendant, the Defendant subsidized KRW 174 million, such as union operating expenses and service expenses, to the fourth district association, and even if the fourth district association requested the Plaintiff to pay the above operating expenses, it is a matter of lending internal money between the Defendant and the fourth district association, and there is no relation with the Plaintiff.

D) Therefore, the defendant's above assertion based on the premise that the defendant is a third party who has acquired specific rights in a contract for a third party is without merit.

2) Next, we examine the Defendant’s assertion on the completion of extinctive prescription.

A) The fact that the Plaintiff, a merchant, lent KRW 150 million to the Defendant, a merchant, and KRW 150 million on August 29, 2003, and KRW 1500 million on September 29, 2003 without fixing the period of each payment, is recognized as above. The record clearly shows that the Plaintiff filed an application for the instant payment order on November 23, 2009, which was five years after the date of each of the above loans, and thus, the Plaintiff’s claim against the Defendant was completed the five-year extinctive prescription with the loan commercial claim.

B) Plaintiff’s assertion on waiver of the statute of limitations interest

(1) The plaintiff's assertion

The Defendant given up the benefit of prescription by accepting the debt after the statute of limitations for the instant loan claim expired.

(2) Determination

㈎ 채권이 법정기간의 경과로 인하여 소멸시효로 소멸된다는 것은 보통 일반적으로 아는 것이라고 인정할 수 있는 것이므로 채무자가 시효완성 후에 채무의 승인을 한때에는 일응 시효완성의 사실을 알고 그 이익을 포기한 것이라고 추정할 수 있다( 대법원 1967. 2. 7. 선고 66다2173 판결 , 1992.5.22. 선고 92다4796 판결 등 참조). 한편, 채무의 승인은 시효이익을 받을 당사자인 채무자가 소멸시효의 완성으로 권리를 상실하게 될 자에 대하여 그 권리가 존재함을 인식하고 있다는 뜻을 표시함으로써 성립한다고 할 것이고, 상계의 의사표시는 수동채권에 관한 한 승인에 해당한다.

㈏ 이 사건의 경우, 피고는 이 사건 제1심 소송계속 중인 2010. 1. 7.자 답변서를 통하여 수색 제3구역 주택재개발사업의 업무추진과 관련된 원고의 이 사건 대여금 채권의 존재를 입증하는 서증(갑 제1, 2호증의 각 1, 2)에 대하여 그 진정성립을 인정한 후, 수색제4구역조합의 이 사건 사업과 관련된 피고의 원고에 대한 반대채권이 존재한다고 하면서 상계항변을 하였음은 기록상 명백하다.

㈐ 따라서 피고는 소멸시효 완성 후 채무를 승인하여 시효이익을 포기하였으므로, 이를 지적하는 원고의 위 주장은 이유 있다.

C) Sub-determination

Thus, the defendant's argument that the above statute of limitations expired is without merit.

3. Conclusion

Therefore, the judgment of the first instance court is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Gangnam-gu (Presiding Judge) Kim Jong-ok