[양수금청구사건][하집1984(3),267]
If a trade name, representative director, objective business, employee, etc. of the old company establishes a new company identical to that of the former company after changing the trade name of the former company for the purpose of evading debts, the identity of the new and old company
In a case where a new company establishes a new company identical to that of the former company by using its trade name, representative director, objective business and employees, etc. using the former business property of the former company for the purpose of evading debts against the other party to the transaction by taking advantage of the fact that the new company may be established relatively easily in accordance with the provisions of the Commercial Act, even if the registration of the establishment of the new company is completed formally, the substance of the new company is the same. In such a case, the establishment of the new company shall be the abuse of the stock company system made for the purpose of evading the former company's obligations, and in such a case, the new and old company did not assert that the new and old company has a separate legal personality against the other party to the transaction, and the other party may seek the performance of the obligations borne by
Article 317 of the Commercial Act
Plaintiff
Defendant Stock Company
1. The plaintiff's claim is dismissed.
2. Litigation costs shall be borne by the plaintiff.
From March 1, 1980 to the Plaintiff, from March 1, 1980 to 3 million won, from March 4, 1980 to 5 million won, from March 12, 1980 to 3 million won to 3 million won, from March 9, 1980 to 3 million won respectively, and from March 9, 1980 to the date on which the duplicate of each complaint of this case is delivered to the Defendant, the amount of 5 million won to 20 million won per annum from the next day to the day of full payment.
The costs of lawsuit shall be borne by the defendant and a declaration of provisional execution.
The plaintiff is the cause of the claim of this case. The non-party 1 transferred the above amount of 3 million won to the defendant company on December 14, 1979 to February 29; 5 million won on March 3, 1980 to the due date; 5 million won on December 26, 1979 to the defendant company on March 11; 3 million won on January 10, 1980 to the due date on March 10, 1980 to the defendant's 19th of 7th of 9th of 9th of 1980 to the defendant company (the above non-party 1 transferred the above loans to the defendant company on December 30, 1983 to the non-party 14th of 9th of 9th of 196th of 196th of 9th of 196th of 197.
However, even if the defendant company was established on October 4, 1982, the plaintiff alleged that each of the above loans owed by the non-party 1 for the establishment of the defendant company was reverted to the defendant company at the same time as the establishment of the company, since the non-party 3, the representative director of the defendant company, was the representative of the defendant company, during the establishment of the defendant company, as the representative of the defendant company, and therefore, each of the above loans owed by the defendant company, which was necessary for the establishment of the company, was reverted to the defendant company. Thus, it was examined whether the non-party 3, the representative of the defendant company, was lent each of the above loans from the non-party 1 to the non-party 4 company for the establishment of the defendant company, and there is no evidence to acknowledge the above loans even if the plaintiff received the above loans from the non-party 1 for the establishment of the defendant company (the non-party 1 to the non-party 4 witness 1 to the non-party 4 witness 1 to the non-party 1 and the non-party 1 to the non-party 1 to the above bill (the non-party 4).
Second, the plaintiff asserts that the defendant company is responsible for repaying each of the above loans owed by the non-party 4 company to the non-party 1 as a transferee of the business who continues to use his trade name since it acquired the whole business of the non-party 4 company at the time of its establishment. Thus, the plaintiff's assertion is groundless since there is no evidence to acknowledge it even if it was based on the plaintiff's prior proof.
Third, the plaintiff, on January 1980, when the number of shares issued by the non-party 4 company was defaulted, the non-party 4 company's representative director of the non-party 4 company changed the trade name of the non-party 4 company to the non-party 5 company for the purpose of undermining creditors including the plaintiff, and then the non-party 4 company was established with the same trade name as that of the non-party 4 company without undergoing the liquidation procedure of the company, and the defendant company continued to conduct the business for the same purpose as that of the defendant company's representative director after being assigned to the non-party 4 company. Thus, the non-party 4 company and the defendant company's representative director of the non-party 4 were merely a separate company but actually the same company, and the defendant company is liable for the non-party 4 company's obligations. Thus, the new company's new company's new business's new business's new business's new business's new business's new business's new business's new business's new business's new business's new business's new business's new business's new business's new business's new business's grounds.
Thus, the plaintiff's claim of this case based on the premise that the defendant company bears the loan obligation against the non-party 1 is groundless without any need to determine the remainder. Thus, it is dismissed and it is decided with the order by applying Article 89 of the Civil Procedure Act to the burden of litigation cost.
Judges Cho Jong-Ie (Presiding Judge) Kim Tae-dae Korea