[2] The case holding that the presumption cannot be reversed solely on the ground that the act of a merchant operating a restaurant business lending money to a merchant operating a real estate brokerage business is presumed to be an act for business pursuant to Article 47 (2) of the Commercial Act, and that the lending of money was made for the purpose of obtaining interest income at a high rate of each other

[2] The case holding that the presumption cannot be reversed solely on the ground that the act of a merchant operating a restaurant business lending money to a merchant operating a real estate brokerage business is presumed to be an act for business pursuant to Article 47 (2) of the Commercial Act, and that the lending of money was made for the purpose of acquiring interest income at a mutual interest rate

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." Since 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," the act of a merchant whose business is not clear whether it is for his/her business operation is presumed to be an act for his/her business, and in order to reverse such presumption, a person who asserts other facts against him/her shall bear the burden of proving it. However, even if a merchant does not engage in the business of lending money, there may be cases where he/she lends money or lends money for the purpose of acquiring interest because he/she has sufficient business funds for the benefit of his/her business or for the benefit of business operation

2. According to the reasoning of the judgment below, the court below rejected the defendant's defense that the plaintiff or the defendant asserted that the plaintiff or the defendant, who operated a restaurant, paid KRW 20 million to the defendant on July 24, 1997, on September 25, 1997, with the maturity of KRW 10 million on or around December 9, 1997, lent each of the above amounts to the non-party at a high interest rate fixed on March 5, 1998, with the maturity of payment as the maturity of KRW 10 million on or around December 9, 1997. The defendant re- loaned each of the above amounts to the non-party at a high interest rate again on the above date, and on the ground that the above monetary lending cannot be deemed as a commercial activity conducted for the purpose of acquiring interest income in mutual interest between the plaintiff and the defendant, as a business activity for "for business" or "for business."

However, in light of the legal principles as seen earlier, it is presumed that the act of the Plaintiff, a merchant operating a restaurant, lent the sum of KRW 30 million to the Defendant, who is the merchant operating a real estate brokerage business, for a business purpose under Article 47(2) of the Commercial Act, unless there is any counter-proof. The presumption cannot be reversed solely on the ground that the said monetary lending act was performed for the purpose of obtaining interest income at a high rate between the Plaintiff and the Defendant, and thus, the said presumption cannot be deemed to have been reversed. Thus, unless the Plaintiff failed to bear the burden of proof to reverse the above presumption, the act of monetary lending to the Defendant should be deemed to be a commercial activity.

The judgment of the court below otherwise is erroneous in the misapprehension of legal principles as to the interpretation and application of Article 47 (2) of the Commercial Act, which affected the conclusion of the judgment, and the ground of appeal pointing this out is with merit.

3. Therefore, without examining the Defendant’s remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Hyun-chul (Presiding Justice)