Plaintiff (Attorney Kim Jong-sik, Counsel for the plaintiff-appellant)

Defendant (Attorney Oh Jeong-soo, Counsel for defendant-appellant)

June 30, 2006

Daejeon District Court Decision 2005Gadan47400 Decided January 24, 2006

1. The part against the plaintiff corresponding to the money ordered to be paid under the judgment of the court of first instance shall be revoked.

The defendant shall pay to the plaintiff 30 million won with 25% interest per annum from February 24, 1998 to the day of complete payment.

2. The plaintiff's remaining appeal is dismissed.

3. The total costs of the lawsuit shall be borne by the defendant.

4. The part on which money is paid under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 30 million won with 3% interest per month from February 24, 1998 to the day of full payment.

1. Basic facts

On July 24, 1997, the Plaintiff set the payment period of KRW 20 million to the Defendant on September 25, 1997. Around December 9, 1997, the Plaintiff issued a total of KRW 30 million (hereinafter “instant loan”) upon setting the payment period of KRW 10 million on March 5, 1998. The Defendant re-issued each of the above money to the Nonparty on the above date.

[Ground for Recognition: Facts without dispute, purport of whole pleadings]

2. The parties' assertion and judgment

A. The parties' assertion

(1) The plaintiff agreed to the interest rate of 3% per month and asked the defendant to lend money to the defendant, and the defendant only lent interest to the plaintiff until February 23, 1998. Thus, the defendant asserts that he is liable to pay the loan of this case and the damages for delay to the plaintiff.

(2) As to this, the Defendant asserted that, upon receiving a request from the Plaintiff to have a third party obtain high interest income by lending the Plaintiff’s money, the Defendant merely introduced monetary transactions between the Plaintiff and the Nonparty by re-delivery of the instant loan received from the Plaintiff to the Nonparty, and it does not mean that the Plaintiff borrowed the instant loan from the Plaintiff, and thus, it cannot accept the Plaintiff’s request.

B. Determination

(1) As to the borrower of the instant loan

The following circumstances, which are acknowledged by Gap evidence 1, 2, Eul evidence 1, 2, and 3-1, 3-2 and the testimony and arguments of the non-party witness at the trial. In other words, when the plaintiff delivered the loan of this case to the non-party or the defendant delivered the loan of this case to the non-party, the plaintiff was only aware of the non-party at the time when the loan of this case was delivered to the non-party, and the interest on the loan of this case was paid to the defendant. ② If the plaintiff expressed clearly that the non-party was willing to lend the loan of this case to the non-party or that the defendant borrowed the loan of this case at the time when the loan of this case was delivered, the plaintiff did not confirm the non-party's identity and intention of borrowing the loan of this case, and it appears that the non-party did not receive an increase in the loan of this case from the non-party under the non-party witness's name or the non-party's intention of borrowing the loan of this case. ③ The plaintiff stated that the non-party's loan of this case was paid the non-party's number of this case.

(2) As to the defendant's argument

The defendant asserts to the effect that the loan claim of this case has expired five-year commercial extinctive prescription, or that since the relationship between the plaintiff and the defendant is an anonymous association under the Commercial Act, the defendant should return only the balance of the investment to the plaintiff.

However, according to the purport of the entire pleadings, at the time of the delivery of the loan of this case, the plaintiff, the defendant operated the restaurant business, and the real estate brokerage business. Thus, the delivery of the loan of this case between the plaintiff and the defendant for the purpose of earning interest income at a mutual rate cannot be deemed to have been conducted as a commercial activity for "business" or "business". Thus, the defendant's assertion on the premise that the delivery of the loan of this case constitutes a commercial activity is without merit.

(3) Sub-decisions

Therefore, the defendant is obligated to pay to the plaintiff interest or delay damages at the rate of 25% per annum, which is an agreement within the maximum of the maximum interest rate under Article 1(1) of the former Interest Limitation Act (amended by Presidential Decree No. 15545 of Dec. 22, 1997) and Article 1(1) of the former Interest Limitation Act (amended by Presidential Decree No. 15545 of Dec. 22, 1997), as claimed by the plaintiff, from February 24, 1998 to the date of full payment.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition, and the remaining claim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, part of the plaintiff's appeal is accepted, and the part of the judgment of the court of first instance against the plaintiff is revoked, and the defendant is ordered to pay the above amount, and it is so decided as per Disposition.

Judges Dok-Ba (Presiding Judge)