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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. The plaintiff's cause of claim and the defendant's written evidence Nos. 1, 2, 4, and 5 are added to the purport of the whole pleadings. ① The defendant borrowed a sum of KRW 93 million from the plaintiff to April 25, 2005 on six occasions from around September 7, 2004, including transfer of KRW 50 million from the plaintiff to the husband's account. ② The defendant was sentenced to seven years of imprisonment on July 8, 2005 due to the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) (Seoul Central District Court Decision 2005Da436), and appealed on October 19, 2005, and then borrowed KRW 1.482 million from five victims including fraud against the plaintiff.
The plaintiff lent money from September 7, 2004 to April 25, 2005, and the repayment period was not specifically determined.
It is evident that the Plaintiff’s lawsuit of this case was filed on June 2, 2016 after the lapse of ten years from the lawsuit.
The Plaintiff’s loan claim was extinguished by prescription before the instant lawsuit was filed.
The defendant's defense of extinctive prescription is justified.
2. The Plaintiff, whether to waive the benefit of extinctive prescription, re-fights against the Defendant’s waiver of the benefit of prescription.
An obligor who is entitled to the benefit of prescription may waive the benefit of prescription after the completion of the extinctive prescription, and this is an expression of intent to seek an effective intent to not receive any legal benefit due to the completion of the prescription.
In addition, the determination of whether there is an expression of intent to waive the prescriptive benefit is objective and equitable in accordance with logical and empirical rules and the common sense of society by comprehensively examining the substance, motive and background of the act or expression of intent, the purpose and genuine intent of the parties to achieve by expressing their intent, etc.