Dongbu Fire Marine Insurance Co., Ltd. (Law Firm Jeongse, Attorneys Kang Jong-ho et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Jeong-jin, Counsel for the defendant-appellant)

March 9, 2010

Seoul Central District Court Decision 2008Gadan437340 Decided September 9, 2009

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay 39,00,000 won to the plaintiff jointly with Co-Defendant 2 of the first instance trial and 5% interest per annum from November 24, 1998 to the service date of the original copy of the payment order of this case, and 20% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

The reasoning for this part of the court's explanation is as stated in Paragraph 1 of Article 402 of the Civil Procedure Act, in addition to the fact that "Defendant 1" is "Defendant 1" in Article 402 of the reasoning for the judgment of the court of first instance, and this part is cited by applying the main text of Paragraph 1 of the same Article.

2. Determination

A. Determination on the cause of the claim

The reasoning for this part of this Court’s explanation is as follows: “Defendant 1” in Article 402(1)(a)(i) of the reasoning of the judgment of the court of first instance other than the fact that “Defendant 1” is “Defendant 1” in Article 402(2)(a)(i) and (ii) of the reasoning of the judgment of the court of first instance are the same as that of paragraph 2(a)(i

B. Judgment on the defendant's defense of extinctive prescription

As the Defendant’s right to claim the return of unjust enrichment by the Plaintiff Company was incurred by the Plaintiff Company, a merchant, based on the consignment contract for the Guarantee Business of Automobile Accident Compensation Act, which constitutes a commercial activity, the five-year commercial extinctive prescription is applied. Since the instant lawsuit was filed on October 30, 2008, which was five years after the Defendant received compensation from the Plaintiff Company, the Defendant’s right to claim the return of unjust enrichment by the Plaintiff Company was extinguished by the extinctive prescription.

According to Article 64 of the Commercial Act, the extinctive prescription of a company under Article 64 of the Commercial Act applies to claims arising from the “commercial activity”. The term “commercial activity” includes not only the basic commercial activity falling under any of the subparagraphs of Article 46 of the Commercial Act, but also the ancillary commercial activity performed by a merchant for his/her business. If the Plaintiff Company performs the basic commercial activity falling under any of the subparagraphs of Article 46 of the Commercial Act, it shall be an ex officio merchant (Article 4 of the Commercial Act). Even if the Plaintiff Company becomes an constructive merchant (Article 5(2) of the Commercial Act) without engaging in commercial activity, all of the acts of the Plaintiff Company shall not be deemed as a commercial activity

Meanwhile, the Guarantee Business of Automobile Accident Compensation under the Private Sector Act is a kind of social security system to compensate for losses within the limit of personal compensation I pursuant to the Private Sector Act for victims who are unable to collect a certain amount of the liability insurance premium paid by a motor vehicle owner as a contribution and undergo traffic accidents even after being compensated. The plaintiff company is merely entrusted by the Government for the performance of its duties, and its subject is in exclusive charge of supervision and guidance on the overall implementation of the project, and the right to guarantee is recognized for the government that is not responsible for damages, so the claims under ordinary private law are different from claims under public law. Thus, the above Guarantee Business does not constitute basic commercial activities under each subparagraph of Article 46 of the Commercial Act or ancillary commercial activities conducted by the Government as a merchant. Since the above Guarantee Business entrusted by the plaintiff company with the Government cannot be deemed as a basic commercial activities or auxiliary commercial activities, the claim for return of compensation for damages paid by the plaintiff company to the defendant according to the above Guarantee Business constitutes a claim for return of unjust enrichment under the Civil Act. Therefore, the period of extinctive prescription of the defendant's defense is without merit.

3. Conclusion

If so, the plaintiff's claim against the defendant is justified, and the judgment of the court of first instance is just, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Su-cheon (Presiding Judge)