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1. The part against the defendant among the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the revoked part is revoked.
Reasons
1. Determination
A. According to the overall purport of Gap evidence Nos. 1 and 5 as to the cause of the claim, the defendant borrowed money from the plaintiff several times from November 21, 2007 to October 28, 2008, and failed to pay KRW 95 million. Accordingly, on April 25, 2009 between the plaintiff and the plaintiff on April 25, 2009, to pay the sum of KRW 95 million from May 2009 to August 1, 2010 each month in installments and deliver a written repayment plan (Evidence No. 4) to the plaintiff, while recognizing the fact that the defendant paid the golf set of KRW 4 million to the plaintiff as substitute goods.
Therefore, barring special circumstances, the Defendant is obligated to pay the Plaintiff a loan of KRW 91 million (i.e., total loans of KRW 95 million - KRW 4 million paid by substitutes) and damages for delay.
B. The plaintiff and the defendant asserted that since the plaintiff and the defendant were merchants at the time of the monetary transaction of this case, the defendant's loan obligations were extinguished by the completion of the five-year commercial statute of limitations as commercial obligations.
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." Since Article 47 (2) of the same 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," the act of a merchant whose business is unclear shall not be deemed to be an act on behalf of his/her business, and in order to reverse such presumption, a person who
However, even if a merchant does not engage in a business of lending money, there may be cases where he/she lends money for business profit or benefit, or lends money for the purpose of acquiring interest because he/she has enough business profit. Therefore, it is presumed that such a merchant's lending of money is conducted for business unless there is any counter-proof.