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대법원 2019.04.25 2018다288730

구상금

Text

The judgment below is reversed, and the case is remanded to the Incheon District Court.

Reasons

The grounds of appeal are examined.

1. It is difficult to view that a third party’s claim liable under Article 42(1) of the Commercial Act by a transferee of a business who employs a trade name is not necessary until the due date for payment of the obligation at the time of the transfer of business is due, and that a transferee shall also be held liable for a third party’s claim that is incurred in the near future at

(See Supreme Court Decision 2004Da35656 Decided December 9, 2004). 2. A.

The judgment below

The reasons and records reveal the following facts.

(1) On October 8, 2014, C and E established the Defendant on October 8, 2014, designating C and E’s wife as the representative director, in order to operate an existing automobile maintenance business facility under the trade name of C and B by investing one-half shares, and to conduct the automobile maintenance business as the principal office.

(2) On January 1, 2015, the Defendant registered its business and started its business after receiving delivery of the land and buildings of the said head office from C at that time.

(3) On April 21, 2015, C transferred all the Defendant’s shares to E, and thereafter resigned from the Defendant’s representative director on July 1, 2015, and E was appointed as the Defendant’s representative director on July 1, 2015 and thereafter, E actually operated the Defendant.

(4) On July 5, 2012, the Plaintiff entered into a credit guarantee agreement with C, and C was loaned KRW 648 million from D based on the said credit guarantee agreement.

(5) On August 9, 2015, the Plaintiff paid the principal and interest of the loan to D Co., Ltd. on November 26, 2015, by subrogationing KRW 659,216,968.

B. According to these factual relations, even if the Defendant took over B’s business from C as determined by the lower court, such business takeover was made on January 1, 2015 after the Defendant registered his/her business and commenced his/her business, or any delay was made on or around January 1, 2015, and C transferred his/her shares to E, and resigned from the Defendant’s representative director.