(영문) 대법원 2018.11.9.선고 2018다239349 판결

1. Part of the judgment of the court below against the plaintiff as to damages for delay shall be reversed, and the above part shall be modified as follows.

With respect to KRW 308,076,712 and KRW 70,000 among them to the Plaintiff, the Defendant shall pay KRW 30% per annum from April 17, 2015 to the date of full payment, KRW 30,000 per annum for KRW 30% per annum from April 17, 2015 to the date of full payment, and KRW 39,000,00 per annum for KRW 15% per annum from the following day to June 21, 2017, KRW 15% per annum from the next day to the date of full payment, until June 21, 2017, and KRW 6% per annum from the following day to June 21, 2017 to the date of full payment, and KRW 15% per annum from the day to June 21, 2016 to the date of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. 5 minutes of the total costs of the lawsuit shall be borne by the Plaintiff, and the remainder shall be borne by the Defendant, respectively.

Reasons

The grounds of appeal are examined.

1. As to the ground of appeal No. 1, the lower court rejected the Plaintiff’s respective claims for loans on the grounds that it is insufficient to recognize that the Plaintiff lent each of the above loans to the Defendant, and that there is no evidence to acknowledge otherwise, as to the claims No. 22 attached No. 1 through No. 3, 5, 7, 8, 9, 10, 11, 13 through 16, 19, and 21 per annum with respect to each of the claims No. 1 through No. 3, 5, 7, 10, 10, 10, 13 through 16, and 19 through 21 (hereinafter “each of the claims of this case”) on the grounds that there is insufficient evidence to acknowledge that there was a interest agreement of 30% per annum or 25% per annum, and that there is no other evidence to acknowledge this.

In light of the relevant legal principles and records, the above determination by the court below is just, and contrary to what is alleged in the grounds of appeal, there were no errors of misapprehending the bounds of the principle of free evaluation of evidence against logical and empirical rules or violating

2. As to ground of appeal No. 2

A. The term “debt arising from the commercial activity to which the statutory interest rate in commercial matters under Article 54 of the Commercial Act applies” includes not only the debt arising from both parties’ commercial activity but also the debt arising from the act that constitutes an ordinary activity against either of the parties (see, e.g., Supreme Court Decisions 2014Da63, Jun. 10, 2016; 99Da10189, Oct. 27, 2000).

B. The court below rejected the Plaintiff’s legal interest claim under the Plaintiff’s Commercial Act on the grounds that the Plaintiff cannot be deemed as having lent money for its business as a merchant, but held that the above loan claim is a commercial bond raised by the Defendant as a merchant for its business, even if the above loan claim is acknowledged at home with respect to Nos. 4 and 6, the court below determined that the period of extinctive prescription is five years.

C. The record reveals that the defendant is a stock company with the purpose of electrical construction business, building business, and related business, and the act of the merchant is presumed to be for the business. Thus, the act of borrowing by the defendant constitutes a subsidiary commercial activity under Article 47 (1) of the Commercial Act as the act of raising funds for the business of the merchant.

Therefore, each of the cited claims of this case is a claim arising from the Defendant’s commercial activity, and a claim arising from an act that acts as a commercial activity is also subject to the statutory interest rate in commercial affairs. As such, the rate of 6% per annum, which is a commercial interest rate under Article 54 of the Commercial Act, shall apply to the damages for delay of each

Nevertheless, the court below erred by misapprehending the legal principles as to commercial statutory interest rates. The ground of appeal assigning this error is with merit.

3. As to the third ground for appeal:

A. According to the records, the first instance court accepted part of its claim against the Defendant for the payment of the agreed amount of KRW 51,800,000 and the agreed interest thereon or delay damages, and filed an additional appeal against the Plaintiff with respect to KRW 263,800,000 and KRW 70,000 among the agreed amount and the loan principal, 15% per annum from December 1, 2016 to the day of full payment, 20,000 per annum from April 17, 2015 to the day of full payment, 30% per annum from April 17, 2015 to the day of full payment, 173,80,000,000 with respect to the agreed amount of KRW 51,50 per annum from June 21, 2016 to June 21, 2017 to the part of the judgment against the Plaintiff. The Plaintiff’s additional appeal with respect to the part of the judgment against the Plaintiff’s appeal is dismissed.

B. However, according to the reasoning of the lower judgment, the lower court partially accepted the Plaintiff’s appeal and the Plaintiff’s substitute.

As principal of such loans, 263,80,000 won shall be cited as the amount cited by the first instance court, and as to the additional interest and delay damages, 173,80,000 won among the principal of such loans, it shall be deemed that the defendant raised an objection as to the existence and scope of such obligation until the date of the original judgment, and as to the amount of KRW 39,00,000 among those 39,00 from December 1, 2015, the day following the delivery of the copy of the first instance court complaint, and as to the remaining amount of KRW 134,80,000 ( + KRW 78,00,000 + KRW 56,00,000), it shall not be deemed that there was a reasonable ground for the lower court to 70,000 won from the date following the original judgment to the date of pronouncement of the claim for performance, and as to the amount of KRW 175,000,000 from the original judgment to the 15,05,00.

The judgment of the court below, which did not apply the interest rate under Article 3 (1) of the Litigation Promotion Act, because the defendant's defense was a considerable reason until the date of the decision of the court below, contains an error of law by misunderstanding the legal principles concerning Article 3 (2) of the

In addition, the statutory damages for delay incurred in the event of nonperformance of a monetary obligation is a subject matter separate from the principal claim, not a part of the principal claim, and whether it constitutes an alteration of disadvantage, shall be determined separately by comparing the principal and the damages for delay by each subject matter of a lawsuit (see Supreme Court Decision 2004Da40160, Apr. 29, 2005). The judgment below modified the judgment of the court of first instance, and ordered the payment of damages for delay for KRW 173,80,000, out of the principal loan cited in the judgment of the court of first instance, by reducing the damages for delay from the day following the date of the judgment of the court of first instance to the date of the decision of the court of first instance, which is the date of the decision of the court of first instance, and it is apparent that the damages for delay on the principal of the loan was less than the cited amount of the judgment of the court of first instance. Accordingly, the judgment of the court

4. Conclusion

Therefore, part of the judgment of the court below against the plaintiff as to damages for delay is reversed, and this part is sufficient for this court to directly judge, and it is decided as follows.

As for the Defendant’s loan KRW 308,076,712 and KRW 70,00 of the principal of the loan of KRW 10,00,00 from December 6, 2013 to the date of full payment, the rate of 30% per annum, which is the agreement acknowledged within the scope of the former Interest Limitation Act, which is the day following the calculation of interest, and KRW 20,000 among the principal of the loan of KRW 20,00,00,00, which is the day following the day when the Plaintiff receives the last payment of interest, the agreement rate of KRW 30% per annum from April 17, 2015 to the day of full payment, 30,39,000,000, which is the day following the delivery of a copy of the complaint of the first instance court, and the Defendant’s claim for the remainder of KRW 20,000 per annum from the day after the day when the Defendant receives a request for performance, shall be 160% per annum and 20% per annum.