[1] The meaning of the basic commercial activity under Article 46 of the Commercial Act

[2] Whether a community credit cooperative's act of lending funds to its members constitutes a commercial activity (negative)

[3] Whether commercial claims under Article 64 of the Commercial Act include claims arising from unilateral or auxiliary commercial activities (affirmative)

[4] In a case where a community credit cooperative grants a loan to a member who is a merchant, the statute of limitations for the loan claim (=5 years)

[1] In order for a certain act to constitute a basic commercial activity under Article 46 of the Commercial Act, it must be an act under any of the subparagraphs of the same Article as a business. The term "business" means the continuous and repeated act of the same kind for profit-making purposes.

[2] According to the overall provisions of the Community Credit Cooperatives Act, since a community credit cooperative is a nonprofit corporation with the purpose of raising and using funds, improving the economic, social, and cultural status of its members, and contributing to the cultivation of a sound national spirit and the development of the national economy through community development on the basis of the unique spirit of mutual aid inherent in our country, it is difficult to view that a community credit cooperative loans funds to its members as a profit-making

[3] Claims arising from not only a claim arising from an act that has become 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 extinctive prescription period of five years under Article 64 of the Commercial Act applies, and 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 auxiliary commercial activity

[4] In a case where a community credit cooperative provides a loan to a member who is a merchant, the merchant's act is presumed to be for business, barring special circumstances, and thus, the period of five-year extinctive prescription shall apply to the loan claims as commercial claims.

[1] Article 46 of the Commercial Act / [2] Article 46 of the Commercial Act, Articles 1, 26 (1) of the former Community Credit Cooperatives Act (amended by Act No. 5462 of Dec. 17, 1997) / [3] Articles 3, 47, and 64 of the Commercial Act / [4] Articles 3, 47, and 64 of the Commercial Act

[1] [1] [2/3/4] Supreme Court Decision 93Da54842 delivered on April 29, 1994 (Gong1994Sang, 1611) / [3] Supreme Court Decision 97Da9260 delivered on August 26, 1997 (Gong197Ha, 2828) / [4] Supreme Court Decision 94Da36643 delivered on April 21, 1995 (Gong195Sang, 193)

Llildong-1 Saemaeul Saemaul Fund (Attorney Lee Jong-soo, Counsel for the defendant-appellant)

Defendant (Attorney Tae-young et al., Counsel for the defendant-appellant)

Daegu District Court Decision 96Na14218 delivered on January 23, 1998

The judgment below is reversed, and the case is remanded to the Daegu District Court Panel Division.

We examine the Defendant’s grounds of appeal.

1. On the first ground for appeal

In light of the records, the court below's rejection of the defendant's defense of payment on the grounds as stated in its reasoning is just, and there is no error of law such as incomplete deliberation or mistake of facts.

2. On the second ground for appeal

According to the reasoning of the judgment below, the court below rejected the defendant's defense of extinctive prescription on the ground that the plaintiff's claim for the loan of this case does not fall under "claim with a period of less than 1 year" under Article 163 (1) 1 of the Civil Code, which is 3 years of extinctive prescription, and the period of extinctive prescription is 10 years, but the ten-year extinctive prescription has not yet expired until December 18, 195, which is the date of the lawsuit of this case.

In order for a certain act to constitute a basic commercial activity under Article 46 of the Commercial Act, it must be an act prescribed in each subparagraph of the same Article, and the business here means to continue and repeatedly engage in the same act for profit-making purposes (see Supreme Court Decision 93Da54842 delivered on April 29, 1994). According to the provisions of the Community Credit Cooperatives Act, the community credit cooperatives are non-profit corporations aimed at raising and using funds on the basis of the unique spirit of mutual assistance in our country, raising the economic, social, and cultural status of its members, raising a sound national spirit through the development of local communities, and contributing to the development of the national economy. Therefore, it is difficult for community credit cooperatives to view that the lending of funds to members of the community credit cooperatives is a profit-making act.

However, a claim arising from an act of both parties as a commercial activity as well as a claim arising from a commercial activity is subject to the period of five years under Article 64 of the Commercial Act. 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 that is performed by a merchant (see Supreme Court Decision 93Da54842, supra). If a member who has obtained a loan from a community credit cooperative obtains a loan for his/her business, as a merchant, he/she shall be deemed a commercial claim. According to the established facts and records of the court below, the non-party who received a loan from the plaintiff is a merchant since he/she can be known that the non-party is a person operating a bus stop. If the commercial activity was financed by the plaintiff, the non-party is presumed to have received a loan from the plaintiff, barring special circumstances (Article 47(2) of the Commercial Act). Thus, it is sufficient to deem that the period of five years has already elapsed prior to the expiration of the prescription period of the commercial activity.

Nevertheless, the court below rejected the defendant's defense of extinctive prescription, but it is clear that the court below committed an error in the misapprehension of legal principles as to extinctive prescription of commercial claims or incomplete deliberation, which affected the judgment. The ground for appeal pointing this out has merit.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Sung-sung (Presiding Justice)