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(영문) 창원지방법원 2016.01.12 2015가단18711
대여금
Text

1. All of the plaintiff's claims are dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Facts of recognition;

A. A. Around July 22, 2005, the Plaintiff received a per share of KRW 35 million per share (E) issued by Hansung Co., Ltd. (hereinafter “Nonindicted Co., Ltd.”) from Non-Party Co., Ltd. (hereinafter “Non-Party Co., Ltd.”) and lent KRW 31.5 million to the Non-Party Co., Ltd. in the name of the said per share discount.

B. On August 12, 2005, the date of payment of the above number of units, the non-party company agreed to pay the above number of units to the Plaintiff, and if the non-party company fails to pay it, the non-party company also jointly and severally guaranteed the duty to pay the amount equivalent to the above number of units of units to the Plaintiff.

[Ground for Recognition: Facts without dispute, entry of Gap evidence 1, purport of whole pleadings]

2. According to the facts of the above recognition as to the claim, the Defendants jointly and severally guaranteed the obligation to pay the amount equivalent to the per share of the company to the Plaintiff. Thus, barring any special circumstance, the Defendants shall pay to the Plaintiff the amount of KRW 35 million per share of the company and damages for delay.

3. As to the Defendant’s assertion, the Defendants asserted that the Plaintiff’s claim has expired by prescription. A.

First of all, the claim of this case is a claim based on the certificate No. 1 of this case and it is not a claim based on the statement of per unit.

B. However, barring any special circumstance, the Plaintiff, as a merchant, lent money to the Plaintiff as security, and the lending of money constitutes commercial activity, and the claim arising from commercial activity is extinguished by prescription, unless it is exercised for five years.

(Article 64 of the Commercial Act). Since it is apparent that the plaintiff filed the lawsuit of this case more than five years from August 12, 2005, which was the due date of the plaintiff's above loan against the non-party company, the plaintiff's claim for the loan to the non-party company as well as the claim against the defendants was extinguished by prescription, the defendants' assertion is concerned.

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