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(영문) 부산지방법원 2016.08.19 2015가단72220
대여금
Text

1. The plaintiff's claim is dismissed.

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

Reasons

1. Determination on the cause of the claim

A. The fact that the Plaintiff loaned a total of KRW 443,650,000 to the Defendant several times from February 13, 2006 to June 11, 2008 upon receiving a request for a business loan from the Defendant is not in dispute between the parties, or may be recognized by the purport of each of the entries and arguments in the evidence Nos. 2, 4, and 5, and there is no reflective evidence.

B. Meanwhile, the Plaintiff received KRW 33,600,000 out of the loan principal from the Defendant from September 1, 2008 after the above lending date.

C. Therefore, barring any special circumstance, the Defendant is obligated to pay to the Plaintiff the remainder of KRW 110,050,000 (=443,650,000 - 333,600,000) out of the leased principal and the delay damages therefor.

2. Judgment on the defense

A. Defendant’s defense 1) Extinctive prescription had already expired after the lapse of five (5) years from the due date for reimbursement for the Plaintiff’s loan claim. 2) The period for exemption was not completed.

Even if the Plaintiff’s loan claims were repaid most, and the remainder of the loan claims (30,000,000) were exempted and terminated by the Plaintiff.

B. 1) According to the above facts of determination as to the defense of extinctive prescription, the Plaintiff’s loan was borrowed from the Plaintiff in order to raise business funds, and the Plaintiff also lent it to the Defendant. Therefore, the monetary loan agreement between the Plaintiff and the Defendant constitutes an auxiliary commercial activity. Therefore, the Plaintiff’s loan claim is subject to the extinctive prescription for a five-year commercial contract under Article 64 of the Commercial Act as a commercial bond. Meanwhile, in light of the Plaintiff’s assertion (the assertion that the Plaintiff received KRW 33,60,000 out of the loan principal until September 1, 2008), the Plaintiff’s loan claim was due before September 1, 2008, [the Plaintiff was paid KRW 50,00,000 among the loan principal of the above loan] received from the Defendant [the Plaintiff’s loan certificate for a three-year loan from the Defendant [the repayment period was September 16, 2006; December 13, 2006; and

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