1. Article 47(1) of the Commercial Act provides that "the act of a merchant on behalf of his/her business shall be deemed a commercial activity." Article 47(2) of the same Act provides that "the act of a merchant on behalf of his/her business shall be presumed to be an act for his/her business," and therefore, the act of a merchant whose place of business is uncertain shall be presumed to be an act for his/her business, and in order to reverse such presumption, a person who asserts other facts shall be liable to prove such other facts. However, even if a merchant does not engage in the business of lending money, there may be cases of lending money or lending money for the purpose of acquiring interest because he/she has sufficient business funds, so such act of lending money by a merchant is presumed to be an act for business unless there is any counter-proof (see Supreme Court Decision 2006Da54378, Dec. 11, 2008)

2. According to the reasoning of the judgment below and the evidence duly admitted, the defendant, who operates the clothing sales store, set the interest rate of 66% per annum on April 22, 2004, and the maturity of 9.9 million won on July 22, 2004, and set the interest rate of 66% per annum on May 14, 2004, and the maturity of 3 million won on June 14, 2004, respectively. The plaintiff and the defendant entrusted the preparation of an authentic deed on each of the above loans on June 25, 2004, entrusted the preparation of an authentic deed on each of the above loans, and the maturity of each of the above loans was set up on July 2, 2004, respectively.

Examining the above facts in light of the legal principles as seen earlier, the Defendant’s act of lending KRW 12.9 million in total to the Plaintiff as a merchant making a sale of movable property for business purposes is presumed to have been done for business purposes under Article 47(2) of the Commercial Act unless there is any counter-proof. The Defendant’s act of lending money does not change even if it does not engage in the business of lending money. Therefore, insofar as the Defendant did not bear the burden of proof to reverse the above presumption, the Defendant’s act of lending money against the Plaintiff should be deemed as commercial activities.

3. Nevertheless, the lower court rejected the Plaintiff’s defense that each of the above loans claim was extinguished due to the completion of five-year commercial extinctive prescription, on the erroneous premise that the Plaintiff ought to prove that the Defendant’s lending of money for business purposes is conducted by the merchant, on the ground that there is insufficient evidence to support that the Defendant lent money for commercial activities or business purposes.

Therefore, this judgment of the court below is erroneous in the misapprehension of legal principles as to the presumption of a merchant's act for business purposes, the burden of proof, and the extinctive prescription of claims arising from commercial activities, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

4. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok

Justices Kim In-bok, Counsel for the defendant

Justices Go Young-young