[1] Whether a claim arising from a unilateral or auxiliary commercial activity constitutes a commercial claim to which the extinctive prescription for a commercial claim under Article 64 of the Commercial Act applies (affirmative), and whether a merchant’s act is presumed to be for business purposes (affirmative)

[2] In a case where a transferee of a claim filed a judicial claim against the debtor without meeting the requirements for setting up against the assignment of claim, whether the claim constitutes a judicial claim, which is the ground for interrupting extinctive prescription

[1] Articles 3, 46, 47, and 64 of the Commercial Act / [2] Articles 149, 168 subparag. 1, 170, and 450 of the Civil Act; Article 265 of the Civil Procedure Act

[1] Supreme Court Decision 2002Da6760, 6777 decided Sep. 24, 2002 (Gong2002Ha, 2516), Supreme Court Decision 2005Da7863 decided May 27, 2005 (Gong2005Ha, 1044), Supreme Court Decision 2006Da1381 decided Apr. 27, 2006 (Gong2006Sang, 897), Supreme Court Decision 201Da109500 decided May 10, 2012 (Gong2012Sang, 995) / [2] Supreme Court Decision 2005Da41818 decided Nov. 10, 2005 (Gong2005Ha, 1964)

Plaintiff (Law Firm Flaon, Attorneys Lee Jae-ho et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Kim Young-hee, Counsel for the defendant-appellant)

Suwon District Court Decision 2017Na5720 decided December 14, 2017

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 2

A claim arising from an act that acts as a commercial activity for both parties as well as a claim arising from an act that acts as a commercial activity for both parties constitutes a commercial claim to which the five-year extinctive prescription period under Article 64 of the Commercial Act applies. Such commercial activity includes not only the basic commercial activity falling under any subparagraph of Article 46 of the Commercial Act, but also ancillary commercial activity that a merchant performs on behalf of both parties (Supreme Court Decision 2011Da109500 Decided May 10, 201). It is presumed that the merchant’s act is for business (Article 47(2) of the Commercial Act).

According to the reasoning of the judgment below, on June 1, 2009, the Defendant, who operated laundry business, borrowed KRW 100 million from the Nonparty’s business funds at interest rate of 2% per month (hereinafter “the instant loan” or “the instant loan”). Thus, the Defendant is a merchant engaging in manufacturing, processing, or repairing as stipulated in Article 46 subparag. 3 of the Commercial Act. The Defendant’s act of borrowing money constitutes a commercial activity as an act for the said business, and thus, the instant loan claims are subject to the period of extinctive prescription of five years as commercial claims.

In so doing, the lower court did not err by misapprehending the legal doctrine regarding commercial claims or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, contrary to what is alleged in the grounds of appeal.

2. Regarding ground of appeal No. 3

A. According to Article 265 of the Civil Procedure Act, “judicial claim” (Article 168 subparag. 1 and Article 170 of the Civil Act), one of the causes interrupting prescription, takes effect when a lawsuit is brought. However, the interruption of prescription becomes effective when a claim by assignment of claims does not lose its identity and is transferred from a transferor to an assignee. This legal doctrine likewise applies even if it fails to satisfy the requirements for counterclaim, and Article 149 of the Civil Act provides that “The rights and obligations which have not been fulfilled may be disposed, inherited, preserved, or secured in accordance with the general rules, and may be disposed, inherited, or secured in accordance with the general rules,” even if the obligor fails to satisfy the requirements for counterclaim, it can be applied mutatis mutandis to the case of the transferee of the claim that has been transferred by assignment of claims, and the transferee of the claim who has filed a judicial claim against the obligor cannot be deemed as “the person who has been locked on the right,” in light of the fact that the transferee of the claim cannot be viewed as a judicial claim, which constitutes grounds for interrupting prescription (see, etc.).

B. Review of the reasoning of the lower judgment and the record reveals the following facts.

(1) At the time when the Defendant borrowed KRW 100 million from the Nonparty on June 1, 2009, the Plaintiff guaranteed the debt of the instant loan, and set up a collateral with respect to the instant land owned by the Nonparty as a maximum debt amount of KRW 130 million.

(2) On February 16, 2012, the Plaintiff paid 17 million won interest on the loan of this case to the Nonparty pursuant to the foregoing guarantee agreement. Meanwhile, the Nonparty received dividends from the voluntary auction procedure (Yanwon District Court Sejong District Court Decision 2013Ma19562, Jun. 21, 2014, KRW 124,774,521 (the principal of the loan of this case, the amount of which is stated as the amount of secured debt in the bond settlement statement, and part of the interest 85,40,000 won, from May 1, 2010 to August 21, 2014).

(3) On February 10, 2015, the Nonparty transferred the instant loan claims to the Plaintiff (hereinafter “transfer of claims”) and notified the Defendant of the transfer of claims on January 25, 2017. Meanwhile, on March 16, 2015, the Nonparty filed a lawsuit against the Defendant seeking reimbursement for the performance of the foregoing guaranteed obligation or the payment of the balance of the instant loan claims under the instant transfer of claims.

C. Examining such factual relations in light of the legal principles as seen earlier, prior to the lapse of five years from May 6, 201, the Defendant asserted as the initial date of the extinctive prescription period, the extinctive prescription of the instant loan claim was interrupted by filing the instant lawsuit seeking the acquisition of the instant loan claim and the payment thereof on March 16, 2015. This also applies where the notification of the transfer of claim was issued after the lapse of the commercial prescription period.

D. Nevertheless, the lower court rejected the Plaintiff’s assertion of interruption of extinctive prescription and determined that the extinctive prescription of the instant loan claim has expired, and rejected all the Plaintiff’s claim for reimbursement and the claim for transfer money on this premise. In so determining, the lower court erred by misapprehending the legal doctrine on the validity of the assignment of claim or the interruption

3. Conclusion

Therefore, without further proceeding to decide on the remainder of the 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

Justices Ko Young-han (Presiding Justice)