[1] In a case where the principal obligation is guaranteed with a period of ten years extended by the extinctive prescription of the principal obligation which constitutes a short-term extinctive prescription by a final judgment against the principal obligor, the period

[2] The case holding that the extinctive prescription period of the guaranteed claim against Byung is five years in a case where Gap who sells construction materials, etc. was jointly and severally guaranteed the debt of the goods price of Eul after the judgment in favor of Eul became final and conclusive in a lawsuit claiming the goods price of Eul against Eul corporation

[1] The guaranteed obligation is independent of the principal obligation, and the period of extinctive prescription of the principal obligation and the principal obligation is separately determined depending on the nature of the obligation. In addition, in a case where the principal obligor guarantees the principal obligation with a ten-year extension of the period of extinctive prescription of the principal obligation corresponding to the short-term extinctive prescription under each subparagraph of Article 163 of the Civil Act by a final judgment against the principal obligor, barring any special circumstance, the short-term extinctive prescription under each subparagraph of Article 163 of the Civil Act is not applicable to the guaranteed obligation, and in a case where the surety’s claim against the principal obligor

[2] The case holding that in case where Gap's act of selling construction materials, etc. was a commercial activity unless there is any counter-proof, and Gap's act of receiving a joint and several guarantee from Byung constitutes a commercial activity, and the extinctive prescription period is five years, barring any special circumstance, in a case where Gap's act of selling construction materials, etc. was confirmed in favor of Eul against Eul Co., Ltd., and Byung's act of receiving a joint and several guarantee from Byung is a commercial claim

[1] Articles 162(1) and 163 of the Civil Act, Article 64 of the Commercial Act / [2] Articles 162(1) and 163 of the Civil Act, Articles 3, 46, 47, and 64 of the Commercial Act

[1] Supreme Court Decision 2010Da28031 Decided September 9, 2010 (Gong2010Ha, 1895)

Plaintiff

Defendant

Ulsan District Court Decision 201Na450 decided August 18, 2011

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

The grounds of appeal are examined.

1. The guaranteed obligation is independent of the principal obligation, and the period of extinctive prescription of the guaranteed obligation and the principal obligation is separately determined depending on the nature of the obligation (see, e.g., Supreme Court Decision 2010Da28031, Sept. 9, 2010). In addition, in a case where the principal obligation is guaranteed by a final and conclusive judgment of the principal obligor in the condition that the period of extinctive prescription of the principal obligation corresponding to the short-term extinctive prescription under each subparagraph of Article 163 of the Civil Act has been extended to ten years, barring any special circumstance, the short-term extinctive prescription under each subparagraph of Article 163 of the Civil Act is not applicable to the guaranteed obligation, and, depending on its nature, ten years are applicable to the surety’s claim

Meanwhile, 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 five-year extinctive prescription period under Article 64 of the Commercial Act applies. Here, a commercial activity refers to a commercial activity under Article 47 of the Commercial Act that a merchant performs for business purposes (see Supreme Court Decision 2005Da7863, May 27, 2005, etc.).

2. A. According to the reasoning of the judgment of the court below, the court below cited the judgment of the court of first instance. ① The plaintiff who sells construction materials, etc. from December 28, 2005 to March 2006 supplied construction materials equivalent to KRW 51 million to the military land corporation (hereinafter "military land") and paid KRW 49.1 million among them, and held the claim for the purchase price of goods with KRW 49.1 million. ② The plaintiff filed a lawsuit against the military land as Seoul District Court Decision 2006No27368, Sep. 28, 2006 for the claim for the purchase price of goods to the plaintiff on September 28, 2006, "the military land was paid with the amount of money calculated at the rate of KRW 20% per annum from July 13, 2006 to the date of complete payment, and the defendant confirmed the payment of the above goods to the plaintiff as soon as possible.

Furthermore, based on the above factual basis, the lower court rejected the Defendant’s objection against the extinctive prescription period, on the grounds that the period of extinctive prescription of the Plaintiff’s claim for the price of goods in the barracks extended to ten (10) years by the above final judgment, and that the Defendant jointly and severally guaranteed the obligation in the barracks, the period of extinctive prescription of the Defendant’s guaranteed obligation is ten (10) years, since the Plaintiff applied for a payment order against the Defendant on July 23, 2010.

B. Examining the facts acknowledged by the court below in light of the legal principles as seen earlier, the extinctive prescription period of the Defendant’s guaranteed liability, which jointly and severally guaranteed the goods payment obligation established by the judgment of the principal obligor, should be deemed ten years in the event the Plaintiff’s guaranteed liability against the Defendant is a civil claim, and five years in the event

However, according to Article 47(1) and (2) of the Commercial Act, a merchant's act for business purposes is presumed to be a commercial activity, and a merchant's act is presumed to be for business purposes. Thus, the act of receiving joint and several sureties from the defendant with respect to payment claims sold by the plaintiff, who is a merchant, constitutes a commercial activity unless there is any counter-proof; therefore, the plaintiff's guarantee claims against the defendant against the defendant constitute a commercial bond and the period of extinctive prescription

Nevertheless, for reasons indicated in its reasoning, the court below erred in finding the Plaintiff’s period of extinctive prescription against the Defendant as 10 years. However, since it is apparent in the record that the Plaintiff applied for the instant payment order against the Defendant on July 23, 2010, before the five-year extinctive prescription for the said guaranteed claim expires, the court below’s decision rejecting the Defendant’s defense of extinctive prescription is just in its conclusion, and there is no error of law by misunderstanding the legal principles as to the period of extinctive prescription for

The Supreme Court Decisions cited in the grounds of appeal by the Defendant are different from the instant case, and are inappropriate to be invoked in the instant case.

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

Justices Jo Hee-de (Presiding Justice)