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1. Revocation of the first instance judgment.
2. The plaintiff's claim is dismissed.
3. All costs of the lawsuit shall be borne by the Plaintiff.
Reasons
Plaintiff’s assertion
Around July 28, 2006, the defendant borrowed KRW 3 million from the plaintiff, and D jointly and severally guaranteed the defendant's obligation to return the borrowed amount.
The defendant and D did not pay the above three million won in full until August 29, 2006.
Therefore, the defendant is jointly and severally liable to pay 3 million won and damages for delay to the plaintiff.
Judgment
A claim arising from an act that has both parties to a commercial activity as well as a claim arising from an act that has both of the parties to a commercial activity constitutes a commercial claim to which the five-year statute of limitations under Article 64 of the Commercial Act applies. 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 that a merchant performs for his/her business (see, e.g., Supreme Court Decision 93Da54842, Apr. 29, 1994). 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.” Article 47(2) of the Commercial Act provides that “The act of a merchant on behalf of his/her business shall be presumed to be an act on behalf of his/her business.” Thus, in order to reverse such presumption, a merchant who asserts the opposing fact is liable to prove
(See Supreme Court Decision 2006Da54378 Decided December 11, 2008, etc.). As to the Plaintiff’s aforementioned loan assertion, even if the Defendant concluded a loan and repayment agreement, the Defendant asserted that the above claim became extinct due to the expiration of the extinctive prescription.
The plaintiff is recognized to have operated an entertainment drinking house at the time of lending the above money, and the plaintiff is presumed to have lent money to the defendant as a merchant. Thus, the plaintiff's lending of money to the defendant is presumed to have been done for business purposes.