1. Revocation of the first instance judgment.

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. If the purport of the entire argument is added to the obligation to return the loan set forth in subparagraph 1, the Plaintiff may recognize the fact that on December 20, 2005, the Plaintiff lent the loan of KRW 50 million to the Defendant as of January 15, 2006 and received a cash custody certificate from the Defendant.

According to these facts, the defendant is obligated to refund the loan amounting to KRW 50 million and the delay damages to the plaintiff, unless there are special circumstances.

2. Determination as to the completion of extinctive prescription

A. The Defendant’s loan credit asserted by the Defendant (hereinafter “loan credit of this case”) is a five-year statute of limitations, since the Plaintiff’s loan credit arising out of the Plaintiff’s commercial activity.

However, the Plaintiff filed the instant lawsuit on July 13, 2009, which was five years after the Defendant approved the Defendant’s debt, from July 13, 2009, on December 28, 2016. As such, the instant loan claim expired after the statute of limitations expires.

B. A claim arising from an act of both parties to a judgment as well as a claim arising from an act of both parties which constitutes a commercial activity is subject to the extinctive prescription 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 carried on by a merchant for his/her business, and also the act of a merchant is presumed to have been carried on for his/her business (see Supreme Court Decision 2009Da10098, Mar. 11, 2010). The Plaintiff’s lending KRW 50 million to the Defendant is presumed to have been carried on for the Plaintiff’s business, which is a company and deemed to have been carried on by the merchant for his/her business and can be deemed as an ancillary commercial activity (Article 47 of the Commercial Act). Accordingly, the extinctive prescription period of five years is applicable to a claim arising from

around July 13, 2009, when the Defendant had due date, the obligation for the instant loan claims.