[1] Whether Article 64 of the Commercial Act may be applied or applied mutatis mutandis to claims corresponding to those arising from commercial activities (affirmative)

[2] The meaning of "it is impossible to exercise rights" where the extinctive prescription is not in progress

[3] In a case where Gap corporation, a rental business operator of public construction rental housing, sought a return of unjust enrichment equivalent to the difference between the sale price paid by Eul et al. based on the unit sale conversion price determined by the uniform calculation method and the legitimate unit sale conversion price, the case holding that the above claim for return of unjust enrichment can not be deemed as an obstacle to the exercise of the right to exercise the right to claim return of unjust enrichment, where five years of extinctive prescription are applied, and

[1] Article 64 of the Commercial Act / [2] Article 166 (1) of the Civil Act / [3] Article 64 of the Commercial Act, Articles 166 (1) and 741 of the Civil Act

[1] Supreme Court Decision 2002Da64957, 64964 Decided April 8, 2003 (Gong2003Sang, 1079) Supreme Court Decision 2013Da214871 Decided July 24, 2014 / [2] Supreme Court en banc Decision 91Da32053 Decided March 31, 1992 (Gong192, 1406), Supreme Court Decision 2008Da15865 Decided September 9, 2010 (Gong2010Ha, 1876)

Plaintiff (Appointed Party) (Attorney Seo-sung et al., Counsel for defendant-appellant)

Peace Housing Construction Co., Ltd. (Law Firm Han field, Attorney Park Jong-young, Counsel for the plaintiff-appellant)

Daejeon High Court Decision 2013Na11438 decided April 1, 2015

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff (Appointed Party).

The grounds of appeal are examined.

1. As to the second ground for appeal

For reasons indicated in its holding, the lower court rejected Plaintiff (Appointed Party; hereinafter “Plaintiff”)’s assertion that the sum of the tax base amount of acquisition tax and acquisition tax on the instant apartment should be considered as the construction cost actually invested in the new construction of the instant apartment.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err by misapprehending the legal doctrine regarding the calculation of construction costs, which served as the basis for calculating pre-sale conversion price.

2. Regarding ground of appeal No. 1

A. Article 64 of the Commercial Act may be applied or applied mutatis mutandis to not only claims arising from commercial activities but also claims corresponding thereto (see, e.g., Supreme Court Decisions 2002Da64957, 64964, Apr. 8, 2003; 2013Da214871, Jul. 24, 2014).

In addition, the extinctive prescription does not proceed from the time when a right has arisen objectively and it is possible to exercise such right and while it is impossible to exercise such right. Here, the term “non-exercise of right” refers to a case where there is a disability in the exercise of such right, such as a cause of disability in the period, for example, the non-performance of conditions or conditions. Even if the existence of a right or the possibility of exercise of such right was not known and there was no negligence, such a cause does not constitute a legal disability (see, e.g., Supreme Court en banc Decision 91Da32053, Mar. 31, 1992; Supreme Court Decision 2008Da15865, Sept. 9, 2010).

B. (1) The court below acknowledged that the claim for return of unjust enrichment in this case, which the plaintiff and the designated parties sought, was caused by the payment of the purchase price in the apartment sale contract in this case, which was concluded by the defendant as commercial activity, and can be deemed as fundamentally based on the sale contract corresponding to commercial activity. The defendant concluded a sale contract with multiple lessees based on the sale conversion price set according to the uniform calculation method, but each contract becomes invalid within the scope exceeding the reasonable pre-sale price set in accordance with the calculation standard set by the relevant laws and regulations, and the circumstance or cause of the occurrence of the claim for return of unjust enrichment in this case, it is necessary to promptly resolve the transactional relationship. Thus, it is recognized that the extinctive prescription should be applied Article 64 of the Commercial Act during that period, and thus becomes subject to the five-year extinctive prescription, and it is practically difficult to exercise the right due to the lack of knowledge that the plaintiff could not exercise the right.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s determination is based on the legal doctrine as seen earlier, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding the period of extinctive prescription claim due to partial invalidation of the

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.

[Attachment] List of Appointeds: Omitted

Justices Kim So-young (Presiding Justice)