[1] Whether a claim arising from a unilateral commercial activity or auxiliary commercial activity constitutes a commercial claim (affirmative)

[2] Whether damage liability arising from the nonperformance of commercial liability is subject to the application of extinctive prescription for commercial liability (affirmative)

[1] Claims 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 with respect to only one of the parties constitutes commercial claims to which the extinctive prescription period of five years under Article 64 of the Commercial Act applies. Such a commercial activity includes not only the basic commercial activity falling under any of the subparagraphs of Article 46 of the Commercial Act, but also auxiliary commercial activities performed by merchants for

[2] A claim to which the Commercial Prescription applies includes not only a claim arising from a direct commercial activity, but also a claim for damages arising from the non-performance of an obligation arising from a commercial activity.

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

[1] Supreme Court Decision 93Da54842 delivered on April 29, 1994 (Gong1994Sang, 1611) Supreme Court Decision 94Da36643 delivered on April 21, 1995 (Gong1995Sang, 193) / [2] Supreme Court Decision 93Da21569 delivered on September 14, 1993 (Gong193Ha, 275)

[Defendant-Appellee] Defendant 1 and 3 others

Defendant 1 and four others

Seoul High Court Decision 96Na24479 delivered on January 22, 1997

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. The court below made a confession that the plaintiff paid the amount of the above confessions by settling one of the four promissory notes which form a face value of 5,000,000 among the four promissory notes borrowed on August 6, 1986 before the non-party 1 died at the court of first instance. The court below revoked the confessions at the court below, but there is no evidence that the confessions at the court below are contrary to the truth and due to mistake. Thus, the court below held that the revocation of the confessions at the court of first instance is null and void. In light of the records, such recognition and determination at the court of first instance is proper and there is no error of law such as violation of the rules of evidence, incomplete hearing, or misapprehension

2. Claims arising from the acts of both parties as a commercial activity as well as claims arising from the acts of both parties which constitute a commercial activity are subject to the extinctive prescription period of five years as stipulated in Article 64 of the Commercial Act. 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 the ancillary commercial activity that merchants carry on for their business (see Supreme Court Decision 93Da54842 delivered on April 29, 1994).

If Nonparty 1, as legally determined by the court below, operated the manufacturing and sales business as a partnership with Nonparty 2, and borrowed the instant money and promissory notes from the Plaintiff for the purpose of raising funds for the business, the above Nonparty 1’s act of borrowing funds constitutes an auxiliary commercial activity conducted for business purposes, and the instant claim arising out of the said commercial activity is a commercial claim, and the period of the extinctive prescription of five years is applicable.

In addition, claims to which the Commercial Prescription applies include not only claims arising from direct commercial activities, but also damages arising from the non-performance of obligations arising from commercial activities.

The judgment of the court below to the same purport is just and there is no error of law such as misunderstanding of facts or misunderstanding of legal principles, etc.

3. The Plaintiff’s assertion in the lawsuit that the extinctive prescription of the instant claim was interrupted is a new argument at the trial. Therefore, it is obvious that the time when the prescription was interrupted is the time after the lapse of five-year commercial prescription. Therefore, the argument is without merit.

4. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Don-hee (Presiding Justice)