Plaintiff 1 and two others (Law Firm Onnuri, Attorneys Kim-hee et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Won, Attorneys Definition-young et al., Counsel for defendant-appellant)

October 27, 2016

Suwon District Court Decision 2015Gahap22936 decided June 9, 2016

1. Revocation of the first instance judgment.

2. All plaintiffs' claims are dismissed.

3. The costs of the lawsuit are assessed against the Plaintiffs.

1. Purport of claim

The defendant shall pay to the plaintiff 1 1 122,85,00 won, and to the plaintiff 2 and the plaintiff 3 122,857,000 won, each of which is calculated by 15% per annum from September 1, 2015 to the day of complete payment.

2. Purport of appeal

The same shall apply to the order.

1. Basic facts

A. The Defendant was the representative director of Taesung Construction Co., Ltd., and the deceased Nonparty 1 (the Nonparty: hereinafter “the deceased”) was the operator of ○○○○○○○○. The Defendant received KRW 450,000,000 from the Deceased around February 8, 199 in order to use it as the fund for the construction of Taesung Engineering Factory located at Leecheon-si ( Address omitted). Since then, the Defendant assumed office as the representative director of Taesung Engineering Co., Ltd. and completed the factory.

B. The Deceased died on July 21, 2003, and Plaintiff 1, the wife of the Deceased, and Plaintiff 2, and Plaintiff 3 inherited the Deceased.

C. On December 29, 2004, the Defendant prepared a written confirmation to the Plaintiffs that “The Defendant received KRW 450,000,000 from the Deceased in relation to the construction of the factory, but the Deceased died and the contract was lost. As such, on May 31, 2005, the Defendant received KRW 450,000,000 from the Jeju Complex Corporation located in △△-dong on May 31, 2005, if he received the amount scheduled to be paid from △△-dong in relation to the Jeju Complex Corporation, he shall pay 1/3 of the received amount, and the shortage shall be paid at the time of the Defendant’s business restructuring (hereinafter “instant agreement”).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, Eul evidence Nos. 1, 2, 4, and 9, the testimony of non-party 2 of the first instance court witness and the purport of the whole pleadings

2. Determination on the cause of the claim

This part of the judgment is consistent with the reasoning of the judgment of the court of first instance, and thus, it is cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

3. Judgment on the defendant's defense

A. The parties' assertion

The defendant asserts that the contract deposit claim of this case is a commercial bond and the five-year extinctive prescription has expired. Accordingly, the plaintiffs merely lent money to the defendant who was extinguished by the deceased. Thus, the plaintiffs asserted that the contract deposit claim of this case is a civil bond and that it is not a commercial bond since it is a bond separately generated by the agreement of this case between the plaintiffs and the defendant.

B. Determination

1) Expiration of the statute of limitations

A claim 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 is subject to the period of five years under Article 64 of the Commercial Act. 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 the ancillary commercial activity that a merchant performs for business (see Supreme Court Decision 97Da9260 delivered on August 26, 1997, etc.).

According to the above facts, the defendant and the deceased all were paid KRW 450,000 from the deceased to use it as the establishment and operation fund of the Taeba Engineering Factory Co., Ltd. as a merchant. Thus, the payment of the above money constitutes an auxiliary commercial activity conducted on behalf of the defendant and the deceased for the business of the deceased. Accordingly, the claim for return of the investment money arising out of the above commercial activity is a commercial claim, and the period of extinctive prescription of five years is applicable.

After the death of the deceased, the Defendant decided to return KRW 450,00,000 received from the deceased to the Plaintiffs, who are their successors, on the ground that the above contractual relationship between the Defendant and the deceased has terminated, thereby resulting in the instant agreement. Although the instant agreement was concluded between the Defendant and the Plaintiffs, the Plaintiffs were to return the investment money of the deceased as their successors, and therefore, it is reasonable to view that the instant contractual deposit claim still remains identical to the claim for return of the investment money. Accordingly, the statute of limitations should be deemed five years.

As seen earlier, the period during which the instant contractual deposit claim came on June 1, 2005, and it is apparent that the Plaintiff’s instant lawsuit was filed on August 21, 2015, which was five years after the said lawsuit was filed. As such, the instant contractual deposit claim had already expired before the instant lawsuit was filed. The Defendant’s defense is with merit.

2) Judgment on the plaintiffs' re-defenses, etc.

The plaintiffs asserted that the defendant paid KRW 10,000,000 among the above KRW 450,000,000 on January 4, 2007 and paid the additional KRW 10,000,000 for the same year, and that the prescription has been interrupted by continuously approving the debt thereafter. However, each of the statements in the evidence Nos. 3, 5,6,7, and 9 is insufficient to recognize the plaintiff's assertion, and there is no other evidence to acknowledge it. Furthermore, even if the defendant paid KRW 20,00,000 to around 207, as alleged by the plaintiffs, even if the defendant paid KRW 20,000,000, it was filed after the lapse of five years thereafter, and the statute of limitations has expired. The plaintiffs' re-claim has no merit.

The plaintiffs asserts that since they did not know whether the Defendant was repaid by △△△, and whether the Defendant re-employed the business, the starting point of the statute of limitations has not yet arrived. However, as seen earlier, the maturity period of the contract deposit claim of this case has arrived at around June 1, 2005, and there is no ground to deem that the maturity period has arrived only when the plaintiffs become aware of such circumstances as alleged by the plaintiffs. The plaintiffs' assertion is without merit.

4. Conclusion

The plaintiffs' claim shall be dismissed. The judgment of the court of first instance is unfair with different conclusions, and it is so revoked, and the plaintiffs' claim is dismissed. It is so decided as per Disposition.

Judges Sung Dok (Presiding Judge) Park Jong-il