[1] Whether a claim arising from a unilateral or auxiliary commercial activity constitutes a commercial claim to which the extinctive prescription for a commercial claim under Article 64 of the Commercial Act applies (affirmative)

[2] The case holding that where a merchant joined a fraternity to raise business funds, the period of extinctive prescription of five years shall apply to the payment claim held by the fraternity owner against the said merchant because it constitutes commercial bonds

[1] Articles 3, 46, 47, and 64 of the Commercial Act / [2] Articles 3, 46, 47, and 64 of the Commercial Act

[1] Supreme Court Decision 93Da54842 delivered on April 29, 1994 (Gong1994Sang, 1611) Supreme Court Decision 2002Da6760, 6777 delivered on September 24, 2002 (Gong2002Ha, 2516) Supreme Court Decision 2005Da7863 Delivered on May 27, 2005 (Gong2005Ha, 1044) (Gong2006Da1381 Delivered on April 27, 2006)

Kim Young-hee

Kimok-hee

Chuncheon District Court Decision 2006Na3763 Decided November 23, 2007

The judgment of the court below is reversed, and the case is remanded to Chuncheon District Court Panel Division.

The grounds of appeal are examined.

1. As to the second ground for appeal

The court below held that there is no evidence that the plaintiff repaid the obligation to pay the entire amount of the loan in this case to the defendant. In light of the records, the judgment of the court below is justified and there is no violation of the rules of evidence as alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

A claim arising from not only a claim arising from an act that has been engaged in a commercial activity but also a claim arising from an act that constitutes a commercial activity is subject to the period of five years under Article 64 of the Commercial Act. The 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 that a merchant performs for business (see Supreme Court Decision 93Da54842 delivered on April 29, 1994). The merchant's act is presumed to be for business (Article 47(2) of the Commercial Act).

According to the records, the plaintiff is a merchant who operates a business registration with the trade name "(trade name omitted)" from January 1, 1992 and engages in the retail business of veterinary items. Thus, since the plaintiff claims that the defendant joined the organization and the management fraternity to raise the business fund and became liable for the payment of deposits, in light of the above legal principles, unless there is any other counter-proof, it is reasonable to deem that the payment claim of this case against the plaintiff constitutes a claim arising from an act that constitutes a commercial activity in relation to the plaintiff, and thus, the period of extinctive prescription of five years is applicable. The Supreme Court precedents cited by the court below are different in this case, and it is not appropriate to be invoked in this case.

Nevertheless, without examining whether there exists any other counter-proof, the court below concluded that the deposit claims of this case are not commercial claims. Thus, the court below erred by misapprehending the legal principles on commercial claims or by misunderstanding facts against the rules of evidence, which affected the conclusion of the judgment. The ground of appeal on this point has merit.

3. Conclusion

Therefore, 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 Park Si-hwan (Presiding Justice)