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1. Revocation of a judgment of the first instance;
2. The plaintiff's claim is dismissed.
3. All costs of the lawsuit shall be borne by the Plaintiff.
Reasons
1. The court's explanation of this part of the judgment on the cause of the claim is the same as the corresponding part of the judgment of the court of first instance, and thus, accepts it as it is in accordance with the main sentence of Article 420 of the
2. As to the defendant's assertion on the defendant's defense, the defendant's assertion was made by a false declaration of agreement, and thus, the notarial deed of this case was invalid. Even if not, the above loan's claim constitutes a claim arising from commercial activity and the five-year extinctive prescription period under Article 64 of the Commercial Act has expired.
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 period of five years extinctive prescription 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 2009Da10098, Mar. 11, 2010). Meanwhile, 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 is presumed
Therefore, in order to reverse such presumption, it is presumed that the act of the merchant whose business is not certain or not for the business, is conducted for the business, and the person who asserts other opposing facts is responsible to prove it.
Even if a merchant does not engage in a business of lending money, there may be cases where he/she lends money for business interest or benefit, or he/she lends money for the purpose of acquiring interest because he/she has enough business funds. Therefore, such lending of money by a merchant is made for business unless there is any counter-proof.