금전대여업에 종사하지 않은 상인의 금전대여행위와 상행위의 추정

This article primarily examines and analyzes the Supreme Court Decision 2006Da54378 delivered on December 11, 2008(“The Supreme Court Decision” hereafter) where the court dealt with the issue of whether the making of a loan by a merchant to the other person shall be presumed as an incidental commercial transaction under the Commercial Act. The Individual merchant's transaction is not always made for the purpose of the commercial transaction, because unlike the corporation, he or she has his or her own personal life which has nothing to do with commercial transaction and his or her transaction could be made in pursuit of his or her personal life. The Commercial Act §47② provides that the transaction made by a merchant is presumed as being made for the purpose of commercial transaction and the Commercial Act §47① provides that the transaction made by a merchant for the purpose of commercial transaction is deemed as an ‘incidental commercial transaction’. By applying these two provisions, we could come to the conclusion that an individual merchant's transaction is to be presumed as an incidental commercial transaction under Commercial Act §47①, thereby putting the burden of proof on the person who argues that the merchant's transaction was not made for the purpose of commercial business. This presumption is a presumption of law, not a presumption of fact. However, the application of the Commercial Act §47② is limited to the case where the purpose of the transaction is not evident. If the purpose of the transaction is for the commercial transaction with no doubt in light of the objective characteristics of the transaction, then the Commercial Act §47① should be applied to the case without a need to apply the Commercial Act §47②. To the contrary, if the purpose of the transaction is clearly for the pursuit of personal life with no doubt in light of the objective characteristics of the transaction, then the Civil Act shall be directly applied to the case. The issue here in the Supreme Court case is whether or not the making of a loan by a merchant who is not engaged in the business of making loans can be deemed as an incidental commercial transaction to which the Commercial Act should be applied. Even if a merchant is not engaged in the business of making loans, he or she might lend money to the other person in order to making profit from the dealing such as gain some operating income or to gain some benefits such as making better relationships with customers. On the other hand, he or she could lend money out of his surplus of operating capital in order to gain some interest income. Those kinds of lending could be considered as commercial transactions in the meaning of a commercial transaction under the Commercial Act §47①. Therefore, if a making of a loan to a person by a merchant who is not engaged in the business of making loans is not a kind of transaction which is not relevant with commercial transaction at all, in other words “not a lending money for business at all”, in light of its objective characteristics. On the contrary, when the purpose of making a loan by such merchant is not clear, then the Commercial Act §47② should be applied to the case and the transaction must be presumed as an incidental commercial transaction under the Commercial Act §47①. The only assertion that the purpose of the making of a loan by a merchant is to gain high interest income is not sufficient ground for the court to overthrow the presumption of the commercial transaction under the Commercial Act §47②, ①. The Supreme Court Decision has the same logics and conclusion as the above-described discussions. The ruling of the Supreme Court Decision is so persuasive and well grounded that it provides very important principle of law that should be applied to the cases with similar issues.