beta
Text
1. The Defendant’s KRW 170,550,00 and the Plaintiff’s annual rate of KRW 5% from February 13, 2019 to May 21, 2019, and the following.
Reasons
1. Where there is no dispute between the parties to the determination on the cause of the claim or when comprehensively taking account of the purport of Gap evidence and the entire pleadings, the plaintiff loaned KRW 20 million to the defendant on November 30, 2009, and lent KRW 34.2 million in total from March 18, 2011 to February 24, 2015, and the plaintiff did not receive KRW 192.5 million out of the above loans.
Therefore, barring special circumstances, the Defendant is obligated to pay the Plaintiff the borrowed amount of KRW 19,250,000 and damages for delay.
2. The defendant's argument that the defendant's claim on the loan of KRW 20 million loaned from the plaintiff on November 30, 2009, and even if not, the plaintiff's claim on the loan of KRW 20 million lent from the plaintiff as a merchant operating the seeds has expired by the lapse of five years.
First of all, there is no evidence to prove that the Defendant repaid the Plaintiff KRW 20 million to the Plaintiff as to the performance note.
Therefore, we cannot accept this part of the defendant's argument.
Next, I examine the assertion of extinctive prescription.
A claim arising from an act that has both parties to a commercial activity as well as a claim arising from an act that has both of the parties to a commercial activity constitutes a commercial claim subject to the period of five years extinctive prescription under Article 64 of the Commercial Act. Such commercial activity includes not only the basic commercial activity falling under any subparagraph of Article 46 of the Commercial Act, but also ancillary commercial activity that a merchant performs for his/her business (see, e.g., Supreme Court Decision 93Da54842, Apr. 29, 1994). Article 47(1) of the Commercial Act provides that “by a merchant shall be deemed a commercial activity.” Article 47(2) of the Commercial Act provides that “The act of the merchant is presumed to be done for his/her business,” and therefore, the act of the merchant whose place of business has not been established is presumed to be conducted for his/her business.”