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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. If the statement in Gap evidence No. 2 added the purport of the entire argument, it is recognized that the plaintiff paid 88 million won to the defendant in total nine times from May 27, 2008 to November 28 of the same year, including 4 million won, and among them, four million won as a loan, and four million won as of May 27, 2008, the fact that the defendant repaid the loan around that time, does not conflict between the parties.
2. The plaintiff asserts that the remaining amount of KRW 84 million is a loan, while the defendant alleged that the above amount of KRW 84 million was the amount invested by the plaintiff to the defendant who tried to open LbC at the time.
If the defendant asserts that the amount received between the original defendant is a loan, the burden of proof for the fact of the loan is the plaintiff.
(2) The Plaintiff submitted by the Plaintiff on December 12, 1972 (see, e.g., Supreme Court Decision 72Da221, Dec. 12, 1972). However, the Plaintiff’s assertion is insufficient to acknowledge that the above 84 million won was a loan, and there is no other evidence to acknowledge it.
(4) Of the above 84 million won, 40 million won was deposited directly with C at the time of the Defendant’s acquisition, and the Defendant’s assertion that the amount of investment was more persuasive. 3. Furthermore, even if the above 84 million won was a loan, a person who prepares for business prior to commencement of commercial activities is realizing an intent to engage in commercial activities. As such, a person who prepares for business is qualified as a merchant at the time of commencement of a preparatory act, and the preparation of a commencement of business is an act for business purposes, and the first ancillary commercial activity is an act for business purposes. In view of the nature of a borrowing of business funds, it cannot be said that the preparation of a commercial activity is an act for business purposes. However, the actor’s subjective intent was prepared for business purposes, and the other party was aware that such an act was a preparatory act for business purposes by the explanation of the actor.