[1] Preliminary opening of business and acquisition time of merchant qualification

[2] The case holding that where a building is purchased from a person who was engaged in the same business as at the time of the preparation for real estate rental business for the purpose of commencing real estate rental business, such purchase constitutes an act of preparing for opening a business as a supplementary commercial activity, and thus, a merchant is qualified at the time of commencement of the above preparation

[3] The purpose and interpretation of Article 69 of the Commercial Code

[1] A person who prepares for a business prior to commencement of a basic commercial activity which is the object of the business is realizing the intent to engage in a commercial activity. As such, he/she is qualified as a merchant at the time of the preparation, and the preparation for the opening of the business is an act for the business, and his/her first ancillary commercial activity is an act for his/her first purpose. Such preparation for the opening of the opening of the business does not necessarily need to be indicated generally and externally by the trade name, registration, opening of the business advertisement, display of signboards, etc., but if the other party can objectively recognize the intention of the business considering the nature of the preparation, such preparation as the purchase of a store, the acquisition of the

[2] The case holding that where a building is purchased from a person who was engaged in the same business as at the time of the preparation for real estate rental business for the purpose of commencing real estate rental business, such purchase constitutes an act of preparing for opening a business as a supplementary commercial activity, and thus, a merchant is qualified at the time of commencement of the preparation for opening

[3] In light of the fact that Article 69 of the Commercial Code is a provision for prompt processing of commercial transactions and protection of a seller, in cases where a buyer, in a sale between merchants, inspects it without delay from the time of receipt of an object and finds any defect or shortage of quantity, he/she may immediately request the seller to cancel the contract due to the defect, to reduce the price, or to compensate for damages, only if he/she must dispatch the notice to the seller. Even if there is a defect that is not immediately discovered even if he/she fulfilled the objective duty of care normally required to the merchant on the object of the sale, it is reasonable to interpret that the buyer cannot be liable to compensate the seller, regardless of whether there is negligence, unless

[1] Articles 4 and 47 of the Commercial Act / [2] Articles 4 and 47 of the Commercial Act / [3] Article 69 of the Commercial Act

[3] Supreme Court Decision 86Meu2446 delivered on July 21, 1987 (Gong1987, 1380), Supreme Court Decision 90Meu28498, 28504 delivered on December 21, 1990 (Gong1991, 597)

Plaintiff (Law Firm Kim & Lee, Attorneys Lee Jae-sik et al., Counsel for the plaintiff-appellant)

Plaintiff Intervenor 1 and one other

Defendant (Attorney Yang LLC et al., Counsel for defendant-appellant)

Seoul District Court Decision 97Na30508 delivered on November 28, 1997

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

A person who prepares for a business before commencing a basic commercial activity, which is a business, is realizing an intention to engage in a commercial activity. As such, he/she acquires the qualification as a merchant at the time he/she performs such preparation, and as well as his/her first ancillary commercial activity is an act for business purposes. Such an act of preparation for a business is not necessarily required to be indicated generally and externally through the trade name, registration, opening trade advertisement, display, etc., but if the other party can objectively recognize the intention of the business in view of the nature of the preparation, such as the purchase of a store, acquisition of a business, employment of a trade employee, etc., if the other party can objectively recognize the intention of the business,

According to the reasoning of the judgment below and the records, the plaintiff can know that the plaintiff purchased the building of this case from the defendant, a merchant who was engaged in real estate rental business at the time as part of the preparation for the commencement of real estate rental business. Therefore, the plaintiff's above purchase constitutes a preparatory act for opening the building as a supplementary commercial activity, and therefore, the plaintiff acquired the qualification as a merchant when the preparation for opening the above

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles as to the time of acquiring merchant qualification as alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

In light of the fact that Article 69 of the Commercial Act is a provision for prompt processing of commercial transactions and protection of a seller, when a defect or shortage of quantity is discovered through an inspection without delay from the time when the object was received, the buyer can immediately dispatch the notice to the seller, and then claim cancellation of the contract, reduction of the price, or damages due to the defect. Even if there is any defect that can not be discovered immediately even if the seller performs the duty of objective care normally required for the merchant on the object of sale and purchase, the buyer can interpret that the buyer cannot be liable to warranty against the seller, regardless of the existence of negligence, unless he/she finds the defect within six months and fails to notify it without delay.

In the same purport, the court below is just in holding that the plaintiff could not exercise the claim for damages of this case due to the lapse of six months from the date of transfer of possession of the building of this case from the defendant, and it did not immediately notify the defendant of the defects in the building of this case within six months from the date of transfer of possession of the building of this case. Even though the defects in the building of this case were not found within six months from the date of transfer of possession of the building of this case, as alleged by the plaintiff, the plaintiff could not exercise the claim for damages of this case due to the lapse of six months from the date of transfer of possession of the building of this case. There is no error of law by misapprehending the legal principles

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)