[보증채무금청구사건][고집1980민(1),339]
Where the whole business is transferred, whether each employment contract and each contract for fidelity guarantee concluded by a guarantor for an employee and an employee between the transferor and the transferor exists as it is between the transferee and the transferee.
If an employer transfers all of his/her business to another person, if the employer transfers the status of the employer to the transferee as it is, and the employee maintains the employment relationship under the bottom of the new employer without objection, the identity of the existing employment contract is not lost, and the existing contract for fidelity guarantee remains in existence between the transferee and the employee as it is, and unless there are special circumstances.
Article 657 of the Civil Code, Article 1 of the Guarantee of Personal Identity Act
Supreme Court Decision 66Da1940 Decided January 31, 1967 (Supreme Court Decision 15Nu51 Decided the Supreme Court Decision, Article 1(18)650 of the Guarantee of Secrecy Act)
Plaintiff
Defendant
Seoul Central District Court (79Gahap2890) in the first instance trial
1. Revocation of the part against the plaintiff falling under the following paragraph (2) in the original judgment.
2. The defendant shall pay 1,000,000 won to the plaintiff.
3. The plaintiff's remaining appeal is dismissed.
4. All the costs of lawsuit are divided into two parts, one of which is the plaintiff's and the other is the defendant's expense.
5. The above paragraph 2 can be provisionally executed.
The original judgment shall be revoked.
The defendant shall pay 2,500,000 won to the plaintiff.
The costs of lawsuit shall be borne by the defendant in both the first and second trials, and a declaration of provisional execution.
In full view of the testimony and the whole purport of oral argument of the non-party 1 in the statement Nos. 1-1 (Guarantee), 2-2 (Certification of Seal Imprint), 3-2 (Certification of Payment of Property Tax), 2-2 (Evidence of Payment), and 5 (Statement) presumed to have been established because there is no dispute as to the above agency's official portion, the defendant concluded a contract to jointly compensate the non-party 2 for damages caused by the non-party 1's intentional act or negligence on April 8, 197 with the non-party 2 who operated the non-party 1's product of the non-party cosmetic Industry Co., Ltd. in Dongdaemun-gu, Seoul (hereinafter omitted), and the fact that the non-party 1 continued to be employed as the non-party 1's agent's product as the non-party 1's product of the non-party 1's product of the non-party 1's product of the non-party 1's company's product of this case and the non-party 1's product 28.
Therefore, if an employer transfers all of his business to another person, if the employer transfers the employer's status as it is, and the employee maintains the employment relationship under the foundation of a new employer without objection, the identity of the existing employment contract is not lost, and the contract for fidelity guarantee remains in existence between the transferee and the employee (see Supreme Court Decision 66Da1940, Jan. 31, 1967). Thus, unless there are special circumstances, the defendant entered into a contract for fidelity guarantee on behalf of the non-party 1 at the time when the non-party 1, the guarantor, worked for the (title omitted) agency operated by the non-party 2, and the above agency transferred its business to the plaintiff, even if the non-party 1, the guarantor, was continuously employed by the transferee, the non-party 1, the transferee, barring any other special circumstances, shall be deemed to continue to exist between the plaintiff and the non-party 1, the guarantor of the non-party 1, and thus, the defendant shall be liable to compensate the damages to the plaintiff.
On the other hand, if Nonparty 1’s above embezzlement of money was conducted for two years since the employer did not thoroughly monitor and supervise the receipts and deposit affairs from time to time, and the Plaintiff discovered the non-party 1’s misconduct on March 5, 1979. After taking over the business from Nonparty 2, the Plaintiff merely notified the Defendant that the non-party 1 was working under the Plaintiff’s foundation on December 29, 1978 without delay without giving notice of the fact of taking over the business from Nonparty 2 and sent the Defendant to the Defendant on December 29, 1978, and then notified the Defendant of the fact that the non-party 1 had been working under the Plaintiff’s foundation on June 7, 1979 that the non-party 1 had been negligent in paying the amount of money to the Defendant for the non-party 1’s reason that the non-party 1 had become the guarantor and the non-party 1’s duty of care for the non-party 1, who was the guarantor.
Therefore, the defendant is obligated to pay to the plaintiff 1,00,000 won. Thus, the plaintiff's claim of this case is accepted within the above scope of recognition, and the remainder is dismissed in fact. Since the original judgment partially different from the party members and the conclusion is dismissed, all of the plaintiff's appeal is unfair, and since the plaintiff's appeal is partly justifiable, the plaintiff's appeal is partially dismissed, and it is ordered to pay the same amount as that stated in the disposition No. 2 of the original judgment, and the remainder of the plaintiff's appeal is dismissed in fact. It is so decided as per Disposition by the application of Article 96, 89, and 92 of the Civil Procedure Act to bear the costs of lawsuit, and Article 199 of the provisional execution.
Judges Lee Byung-chul (Presiding Judge)