1. The plaintiff's appeal is dismissed.

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

Purport of claim and appeal

The first instance court.

Facts of recognition

The court's explanation on this part is citing this part of the reasoning of the judgment of the court of first instance as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

The Plaintiff asserts to the effect that D’s borrowing of money from the Defendant constitutes an auxiliary commercial activity and the extinctive prescription of five years is applied, and that the establishment registration of the instant collateral is invalid as the right to collateral security for which the extinctive prescription of the secured claim has been completed, and that the Defendant’s receiving of dividends based on the invalid collateral security is unreasonable.

A claim arising from an act of both parties as a commercial activity as well as a claim arising from an act of both parties which constitutes a commercial activity is subject to the extinctive prescription period of five years under Article 64 of the Commercial Act. Such commercial activity includes not only the basic commercial activity falling under any of the subparagraphs of Article 46 of the Commercial Act, but also ancillary commercial activity carried on by a merchant for his/her business, and the act of the merchant is presumed to be carried on for his/her business (see Article 47(2) of the Commercial Act) (see, e.g., Supreme Court Decision 2007Da91251, Apr. 10, 2008). In full view of the records stated in subparagraphs 4 and 6 of the Commercial Act (including serial numbers; hereinafter the same shall apply), the fact-finding of the fact-finding and the whole purport of arguments against the director of the Busan Tax Office of the first instance court, it can be recognized that D was a merchant who operated the gas station or storage office at the time of borrowing money from the defendant

A merchant D is presumed to have borrowed money from the Defendant for business purposes, and there is no other evidence to reverse such presumption.

Therefore, the Defendant’s loan claims against D (hereinafter “instant claim”) constitute a commercial claim for five years as a claim arising from an act that constitutes a commercial activity in relation to D.