사해행위취소 등
1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
Purport of claim and appeal
1..
The reasons why the court should explain this case in this case are as stated in the reasoning of the judgment of the court of first instance, except where the defendant added the judgment of the court of first instance as stated in the following paragraph (2). Thus, this is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.
The summary of the defendant's argument that the defendant's additional decision on the statute of limitations defense is that D borrowed KRW 400 million from the plaintiff in order to use it as the business fund of the non-party company that was a director of the company.
On January 28, 2013, the last day on which the Plaintiff received a partial repayment from D, and the five-year commercial extinctive prescription from the Plaintiff had already expired the above loan obligation. Accordingly, according to the subsidiary nature of the guaranteed obligation, the Plaintiff’s joint and several surety obligation against the Intervenor joining the Defendant was extinguished together with the principal obligation.
Judgment
Even if a company is deemed to be a merchant under the Commercial Code, the representative director, who is an agent of the company, is not a merchant, and even if the representative director borrows funds for the company, the borrowed funds cannot be viewed as a commercial obligation because it does not constitute a commercial activity.
(See Supreme Court Decision 92Da7948 Decided November 10, 1992, Supreme Court Decision 201Da83226 Decided March 29, 2012, Supreme Court Decision 2011Da83226 Decided July 26, 2012, etc.). Even according to the Defendant’s assertion, D borrowed KRW 400 million from the Plaintiff to use it as a company’s business fund as an internal director of the non-party company. Accordingly, D’s debt borrowed to use it as a company fund cannot be deemed as a commercial debt.
Therefore, the defendant's defense based on the premise that the principal obligation was extinguished due to the completion of the five-year commercial statute of limitations is without merit.
Therefore, the judgment of the court of first instance is justifiable, and the defendant's appeal is dismissed. It is so decided as per Disposition.