The plaintiff's claim is dismissed.

Litigation costs shall be borne by the plaintiff.

원고가 1996. 5. 13. 형(兄)인 피고에게 5,000만 원을 대여한 후 피고로부터 2001. 7. 30. 3,000만 원, 2009. 4. 28. 2,000만 원을 각 변제받은 사실은 당사자 사이에 다툼이 없다.

As the cause of the claim in this case, the Defendant borrowed money from the Plaintiff as above was the purpose of the opening business of the business that was prepared by the Defendant at the time, and therefore, it constitutes an auxiliary commercial act and therefore, there is a legal interest rate of 6% per annum as stipulated in the Commercial Act from the day following the date of the above loan. The Defendant asserts that the above repayment amount is KRW 32,257,656 in the calculation of the principal amount remaining after being appropriated first with the legal interest accrued from the date of the loan to the date of repayment, and thus, the Defendant is obligated to pay the Plaintiff the above KRW 32,257,656

Article 55 (1) of the Commercial Act provides that "If a merchant lends money to him/her in connection with his/her business, he/she may request legal interest."

However, in this case, there is no assertion or proof as to the fact that the plaintiff is a merchant (the defendant claiming that the plaintiff is a merchant is not a lender but a lender), and further, the business relationship of the above monetary loan contract cannot be recognized in light of the relationship between the plaintiff and the defendant.

As a result, the Plaintiff’s assertion on the cause of claim cannot be accepted, and even based on the Plaintiff’s assertion, the claim asserted by the Plaintiff was extinguished against the intent of the period of extinctive prescription.

I would like to say.

As to this, the Plaintiff alleged to the effect that the Defendant renounced the prescriptive benefit around January 19, 2020 or around February 2, 2020 or around February 6, 2020. However, the waiver of the prescriptive benefit is a sole act indicating the existence and amount of the obligation after the obligor recognized the existence and amount of the obligation, and thus, it is deemed that the Plaintiff’s waiver of the prescriptive benefit constitutes a separate act expressing its external perception. The entries of the evidence Nos. 3 and 5 are alone stated by the Defendant.