(영문) 대법원 2016.5.12.선고 2014다37552 판결

1. A person who prepares for a business prior to commencement of a commercial activity which is an object of the business is realizing an intent to engage in a commercial activity. As such, a person who prepares for a business is qualified as a merchant at the time of the preparation, and his/her preparation for the business is the first ancillary commercial activity. If the other party can objectively recognize the intention of the business in light of the nature of the preparation, such as purchase of a store, takeover of business, employment of a trade employee, etc., the preparation for the business is governed by the provisions of the Commercial Act concerning commercial activities as an ancillary commercial activity (see Supreme Court Decision 98Da1584, Jan. 29, 199). In addition, the act of borrowing business funds cannot be deemed as an act of preparing for a commercial activity which is an object of the business in view of the nature of the act itself, but the provisions of the Commercial Act concerning the commercial activity are applicable if the actor’s subjective intent is the preparation for the business and the other party is aware that the act is the preparation for the business (see Supreme Court Decision 2014Da124666, Apr. 13, 2013).

Meanwhile, in full view of the contents and legislative purport of Articles 440 and 165 of the Civil Act, even if the principal obligation becomes final and conclusive by a final judgment between a creditor and a principal obligor, and the period of extinctive prescription has been extended to ten years, this does not necessarily mean that the application of short-term extinctive prescription to the guaranteed obligation is excluded and the ten-year extinctive prescription period is not applied, and as between a creditor and a joint and several surety, the period of extinctive prescription for the joint and several surety obligation is still based on the previous extinctive prescription period (see, e.g., Supreme Court Decision 2004Da26287

2. The lower court rejected the Defendant’s defense, based on its reasoning, that the Defendant’s joint and several liability obligations against the Plaintiff were already extinguished due to the lapse of the five-year extinctive prescription period, on the premise that the primary debtor, who operated a singing room at the time of the instant lending, borrowed money from the Plaintiff to raise funds for facility investment to change the category of business immediately, and that the Plaintiff also received such explanation from the Plaintiff and recognized that the primary debtor was a preparatory act for business.

3. However, the evidence and records admitted by the court below, i.e., B’s wife at the court below’s appearance as witness, i.e., the following circumstances acknowledged by the court below, i., B’s appearance was no longer possible to change its category of business due to the suspension of business, etc. at the time of “B” and her joint and several surety was also offered with B’s testimony consistent with the Defendant’s argument that “B changed its existing singing room facilities and closed its business after opening its music room,” and “the principal debtor attempted to change its category of business without difficulty, and applied for a loan of facility funds for this purpose.” The Plaintiff submitted a document to the court below that “B was present at the time of its opening business” to the Plaintiff and the Defendant that it was difficult for the Plaintiff to use the loan funds under the Plaintiff’s own name, and that it was also difficult for the Plaintiff and the Defendant to use the loan funds for a short period of time, and that it was also difficult for the Plaintiff to use the loan funds to the Defendant and its employees.

Furthermore, if the act of borrowing B is recognized as a commercial activity and the five-year extinctive prescription is applied to the loan obligation, even if the period of extinctive prescription is extended by ten years after the Plaintiff received a final and conclusive judgment on the loan obligation against B, the period of extinctive prescription of the Defendant’s joint and several liability obligation ought to be deemed to be still based on the previous period. Therefore, there is sufficient room to deem

Therefore, the lower court rejected the Defendant’s defense on the grounds stated in its reasoning, even though it should have examined and determined whether the Plaintiff’s obligation to lend a loan constitutes a commercial obligation and whether the Defendant’s obligation was extinguished by prescription due to thorough examination of the circumstances surrounding the submission of the foregoing document to the first instance court. In so doing, the lower court erred by misapprehending the legal doctrine as seen earlier, and failing

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, 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.