[1] Whether a claim arising from a unilateral or auxiliary commercial activity is also included in commercial claims under Article 64 of the Commercial Act (affirmative)

[2] The case holding that the right of a merchant to claim for the registration of establishment of an exclusive license shall apply to the right of a commercial bond under Article 64 of the Commercial Act and the period of extinctive prescription of five years, which occurred as a beneficiary of a contract for a third party

[1] Not only a claim arising from an act which has both parties as a commercial activity but also a claim arising from an act which constitutes a commercial activity is subject to the extinctive prescription period of five years as stipulated in 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 carried on by a merchant for business. It is presumed that a merchant's act for business purposes is regarded as a commercial activity but also the act of the merchant is regarded as a commercial activity

[2] The case holding that the right of a merchant to claim for the registration of establishment of an exclusive license shall apply to a commercial claim under Article 64 of the Commercial Act, which occurred as a beneficiary of a contract for a third party by expressing his/her intent of profit

[1] Articles 3, 46, 47, and 64 of the Commercial Act / [2] Article 64 of the Commercial Act

[1] Supreme Court Decision 97Da9260 delivered on August 26, 1997 (Gong1997Ha, 2828), Supreme Court Decision 98Da10793 delivered on July 10, 1998 (Gong1998Ha, 2091), Supreme Court Decision 98Da23195 delivered on May 12, 200 (Gong2000Ha, 1368)

Hyundai Environmental Heat Management Co., Ltd. (Law Firm Pacific, Attorneys Kim Jong-ro et al., Counsel for the defendant-appellant)

Defendant Counterclaim (Attorney Song-Counterclaim et al., Counsel for defendant-appellant)

Seoul High Court Decision 2000Na30013, 30020 delivered on November 27, 200

The appeal is dismissed. The costs of appeal are assessed against the plaintiff (Counterclaim defendant).

We examine the grounds of appeal.

1. As to the subject of extinctive prescription

According to the reasoning of the judgment below, the court below found that the plaintiff, as a third party, had the right to claim for the registration of exclusive license until April 27, 191, the date of the registration of the patent of this case, was a stock company, and that the plaintiff had the right to claim for the registration of the establishment of the patent of this case since the lawsuit of this case was filed five years after the date of the registration of the patent of this case. The court below held that "the plaintiff had already been registered as a joint patentee with the defendant as to the patent of this case, and thus, it cannot be viewed as a locked person on the ground that the right is already used or profit-making under the control of the plaintiff, and thus the above claim of this case was not extinguished on the ground that "the plaintiff did not have the right to claim for the registration of the patent of this case as joint patentee" as to the plaintiff's assertion that "the patent of this case was registered as a patent of this case with the defendant of this case." The court below did not have the right to claim for the registration of the establishment of the patent of this case."

In light of the records, we affirm the above recognition and judgment of the court below, and there is no error of law by misunderstanding the legal principles as to the extinctive prescription, as otherwise alleged in the ground of appeal.

2. As to the application of the Commercial Claim Prescription

A claim arising from an act of both parties' commercial activity as well as a claim arising from an act of both parties' commercial activity constitutes a commercial claim to which the extinctive prescription period of five years 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 which a merchant performs for business (see Supreme Court Decision 97Da9260 delivered on August 26, 1997). It is presumed that the merchant's act is considered as a commercial activity but also that the merchant's act is performed for business.

In the same purport, the court below's application of the extinctive prescription period of Article 64 of the Commercial Act to the claims arising from the acts of the plaintiff who is a merchant is justified, and there is no error in the misapprehension of legal principles as to the extinctive prescription period of commercial matters as otherwise alleged in the ground

3. Conclusion

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 Lee Jin-hun (Presiding Justice)