[1] Whether a claim for the payment of the interest by commercial law is included in the claim for payment of the interest, alleging that there was a monetary loan for consumption between merchants (affirmative)

[2] The case holding that since an agreement on the payment of interest as to a loan includes the purport of seeking the payment of interest under the Commercial Act, the court should immediately dismiss the above claim, even if the agreement on the payment of interest is not recognized, but also determine the legal interest claim

[1] The claim for payment of the agreed interest by asserting that there was a monetary loan for consumption among merchants should be deemed as including the claim for payment of the agreed interest under the Commercial Act even if the agreed interest rate is not recognized.

[2] The case holding that since an agreement on the payment of interest as to a loan includes the purport of seeking the payment of interest under the Commercial Act, the court should immediately dismiss the above claim, even if the agreement on the payment of interest is not recognized, but also determine the legal interest claim

[1] Articles 54 and 55 (1) of the Commercial Act / [2] Articles 54 and 55 (1) of the Commercial Act

Masung Unemployment Co., Ltd. (Attorney Park Dong-dong et al., Counsel for the plaintiff-appellant)

Seoul Steel Industry Co., Ltd. (Law Firm Gyeong & Yang, Attorneys Noh Jeong-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2006Na4542 Delivered on September 19, 2006

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court.

1. Regarding ground of appeal No. 1

In light of the records, the court below's rejection of the plaintiff's claim for payment of 1,861,00,000 won delivered by the plaintiff to the defendant on the ground that there is no evidence to prove that there was an agreement to pay interest at 10% per annum on the loan under the condition that the loan was issued as a condition for the initial conversion of investment, but it maintained the nature of the loan, but it did not carry out a conversion of investment, and there is no violation of the rules of evidence or misapprehension of the legal principles as to the contract

2. Regarding ground of appeal No. 2

First of all, there is no circumstance to deem that a transfer contract between the Plaintiff and ○○○○ Company lost its validity due to the lawful rescission, etc., and the circumstances in the ground of appeal by the Plaintiff may be the circumstances where the Defendant inferred that ○○○○○ Company lost its validity due to the cancellation of the contract between the Plaintiff and the transfer of claims between ○○○○ Incorporated Company, and it cannot be a circumstance to deem that ○○○○○○○○ Company expressed her consent. In the same purport, the lower court is justifiable to have rejected the Plaintiff’s assertion that the said transfer of claims was invalidated, and there is no error of misapprehending the legal principles as to the invalidation of the transfer of claims, as otherwise alleged in the ground of appeal.

3. As to the third ground for appeal

According to Article 55 of the Commercial Code, if a loan for consumption of money was made between merchants, the lender can claim legal interest, and even if the agreed interest rate is not recognized, the claim for payment of the agreed interest is included in the claim for payment of the interest under the Commercial Code, even if the agreed interest rate is not recognized.

According to the reasoning of the judgment below, the court below rejected the claim of the plaintiff seeking payment of interest rate of 10% per annum with respect to the above loan, on the ground that there is no evidence to acknowledge that the plaintiff, a company, has a claim for a loan of KRW 1,861,00,000,000, to the defendant company. However, the court below accepted only the claim for delay after the delivery of the complaint of this case.

However, in light of the above legal principles, the plaintiff's above interest payment claim includes the purport of seeking legal interest payment under the Commercial Act. Therefore, even if it is not recognized that the agreement between the plaintiff and the defendant was concluded, the court below should have judged the plaintiff's legal interest claim, not immediately rejection of the plaintiff's interest payment claim. The judgment of the court below is erroneous by misapprehending the legal principles as to this point, which affected the judgment.

4. Therefore, the part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Ahn Dai-hee (Presiding Justice)