(영문) 서울남부지방법원 2015.05.28 2014나55876

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(영문) 서울남부지방법원 2015.05.28 2014나55876

대여금

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1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

Purport of claim and appeal

The first instance court.

Reasons

1. The parties' assertion

A. The Plaintiff’s assertion that the Plaintiff lent KRW 10 million to the Defendant’s account on March 28, 2006, and KRW 20 million to the Defendant by remitting KRW 10 million to E’s account designated by the Defendant (hereinafter “first loan”); ② on April 8, 2006, the Plaintiff issued a cashier’s check issued by the National Bank of Korea on April 7, 2006 to the Defendant and lent KRW 30 million to the Defendant (hereinafter “second loan”); and the Defendant is obligated to pay KRW 50 million in total ( KRW 20 million in total) to the Plaintiff.

B. The Defendant’s assertion 1) The first loan is not borrowed by the Defendant, but invested by the Plaintiff, the Defendant, and C in the entertainment room business as well as the Plaintiff’s investment. 2) The Plaintiff delivered the second loan receipt slip to C instead of the Defendant. The Defendant did not borrow it. Even if the Defendant received the said receipt slip, it was delivered to the Defendant, and thus, the Defendant did not have any obligation to return it.

3 Even if the Plaintiff assumed that the money was lent to the Defendant as alleged by the Plaintiff, the Plaintiff’s loan claim expired due to the expiration of the extinctive prescription.

2. Determination

A. Even if it is assumed that the Plaintiff loaned KRW 50 million to the Defendant, as alleged by the Plaintiff, the Plaintiff’s loan claim expired after the lapse of the five-year commercial extinctive prescription as seen below.

B. A person who prepares for a business prior to commencement of a commercial activity which is an object of the business is realizing an intent to engage in a commercial activity. As such, he/she is qualified as a merchant at the time of the preparation, and his/her preparation for the opening of the business is an act for business purposes, which is the first ancillary commercial activity. Such preparation for the opening of the business is always an act for the opening of the business, which is a general and extra-party business entity

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