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(영문) 서울중앙지방법원 2015.10.29 2014가단5288315

양수금

Text

1. Defendant A’s interest rate of KRW 86,58,652 and KRW 31,374,450 among the Plaintiff shall be from October 7, 2014 to the date of full payment.

Reasons

1. Claim against the defendant A;

(a)as shown in the reasons for the attachment of the claim;

(b) Article 208 (3) 2 of the Civil Procedure Act of the applicable provisions of Acts;

2. Claim against the defendant B

A. The facts, such as the entry of the cause of the claim in the separate sheet, do not conflict between the parties, or can be acknowledged as having neglected the whole purport of the pleadings in each entry in Gap evidence Nos. 1 through 11 (including the paper numbers). Thus, the plaintiff has a claim against the defendant B related to No. 2 of the above list of claims.

B. As to this, Defendant B asserted that the five-year statute of limitations has lapsed on the premise that the loans No. 2 were commercial claims, and the Plaintiff asserted that the ten-year statute of limitations has not yet lapsed on the premise that Defendant A is civil claims on the premise that the above loans were established on December 11, 2008, under the premise that the above loans are civil claims, on the premise that Defendant A is members of the 1-dong Saemaul Bank, which is the above lending institution.

Since the guaranteed obligation is independent of the principal obligation, the period of extinctive prescription of the guaranteed obligation and the principal obligation shall be separately determined depending on the nature of the obligation.

(Supreme Court Decision 201Da76105 Decided June 12, 2014). Therefore, even if a claim against Defendant A, a primary debtor, is a civil claim, the period of extinctive prescription against Defendant B, a joint and several surety, should be separately set depending on its nature.

However, since there is no dispute between the parties that Defendant B is not a member of the above 1-dong Saemaul Depository, it is reasonable to deem that the above community credit cooperative's act of entering into a joint and several guarantee contract with the above Defendant constitutes a commercial activity. Accordingly, the statute of limitations is five years pursuant to Article 64 of the Commercial

Therefore, since the extinctive prescription of the above claim No. 2 against the defendant B has expired, the plaintiff's assertion against the above defendant cannot be accepted.

3. Accordingly, the Plaintiff’s claim against the Defendant A.