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(영문) 서울중앙지방법원 2019.01.11 2018가단5155116
대여금
Text

1. The plaintiff's claims against the defendants are all dismissed.

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

Reasons

1. The Plaintiff and the Defendant Limited Company B (hereinafter “Defendant Company”) entered into an installment financing agreement (hereinafter “instant agreement”) around October 6, 201 with respect to the cause of the claim, and the Plaintiff loaned KRW 240,000,000 to the Defendant Company, and the Defendant C jointly and severally guaranteed all obligations under the instant agreement. Unless there are special circumstances, the Defendants are liable to pay the remaining installment payment and damages for delay to the Plaintiff.

2. Judgment on the defendants' assertion

A. The Plaintiff’s claim against the Defendants against the Defendants is a commercial claim, and the extinctive prescription has expired on November 15, 2017 after five years from November 15, 2012, which was the last repayment date of the Defendant Company, and thus, the Plaintiff’s claim cannot be complied with.

B. The initial date of the judgment is the starting point of calculating the period of extinctive prescription, which falls under the requirements of the occurrence of the legal effect called the extinction of the obligation, and thus constitutes a specific fact that constitutes the legal requirement of the defense of extinctive prescription, which is subject to the application of the principle of pleading. Therefore, where the initial date of the extinctive prescription differs from the initial date of the pleading, the court should calculate the extinctive prescription based on the initial date of the pleading, which is the principle of pleading. The same applies not only to the case where the party asserts that the date after

(See Supreme Court Decision 94Da35886 Decided August 25, 1995, etc.). The claim of this case is a commercial bond and the period of extinctive prescription is five years. The starting date of the extinctive prescription as claimed by the Defendants is around November 15, 2012, and it is apparent that the lawsuit of this case was filed on April 11, 2018 when five years have passed since the lawsuit of this case was filed. Thus, the extinctive prescription of the claim of this case is valid.

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