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

The grounds of appeal are examined.

1. The lower court acknowledged the following: (a) the co-owners of AF located in each site of this case entered into a share contract for the instant reconstruction project with AG (hereinafter “AG”); (b) that V actually led the instant reconstruction project as the actual management owner of AG; and (c) that V borrowed money from the Defendants under the pretext of using the money as the construction cost of the instant reconstruction project; (b) determined that the instant reconstruction project constitutes a commercial activity; and (c) that V borrowed money for the instant reconstruction project constitutes a subsidiary commercial activity, on the ground that the act of borrowing business funds is presumed as a merchant’s act for business purposes, and that the act of borrowing business funds for the instant reconstruction project constitutes an ancillary commercial activity, and thus, the period of extinctive prescription of five years is applicable as a commercial liability.

2. However, the above determination by the court below is difficult to accept. A.

A merchant is engaged in commercial activities as the subject of the rights and obligations arising out of commercial activities, and the act of a merchant is based on the premise that the person who performs the act in order to be subject to the Commercial Act as an auxiliary commercial activities acquires the qualification of the merchant himself/herself. Even if a company is deemed as a merchant under the Commercial Act, the representative director, who is the institution of the company, is not a merchant, and even if the representative director, even if he/she borrowed money for the use of the company funds,

(Supreme Court Decision 92Da7948 Decided November 10, 1992; Supreme Court Decision 201Da83226 Decided March 29, 2012; Supreme Court Decision 2011Da83226 Decided March 29, 2012; Supreme Court Decision 201Da43594 Decided July 26, 2012).

The judgment below

Examining the reasoning in light of the above legal principles, AG, which is deemed a merchant under the Commercial Act, performs commercial activities as the subject of rights and obligations arising from the reconstruction project of this case by concluding a contract for construction works in the above share ownership, and is not AG.