[매매대금][하집2001-2,151]
The case holding that it cannot be deemed that the defaulted company's business was acquired by transfer in case where employees of the defaulted company have been operated for a limited period by establishing an enterprise similar to the defaulted company using the machinery, apparatus, etc. in order to recover the remaining wage claims after taking over claims against its customers and machinery, apparatus, etc. for partial repayment of claims such as wages and retirement allowances which were not paid by the defaulted company.
The case holding that in case where workers of the defaulted company have taken over claims against customers of the defaulted company for partial repayment of claims such as wages and retirement allowances which were not paid by the defaulted company at the time of the dishonor, and established and operated temporarily an enterprise similar to the defaulted company by using the machinery, apparatus, etc. in order to recover the remaining wage claims, a large number of workers' taking over the machinery, apparatus, etc. from the defaulted company does not directly aim at carrying out their own business activities, and it is a measure taken as a means to secure the repayment of claims such as their wages, etc., and in essence, they cannot be deemed to have taken over the defaulted company's business by taking account of the fact that they were in nature as the procedure for settling their claims
[1] Article 42 (1) of the Commercial Act
Large Image Co., Ltd. (Law Firm, Kim & Lee, Attorneys Lee Jong-chul et al., Counsel for the defendant-appellant)
Kim Jin-won (Attorney Kim Jin-jin et al., Counsel for the defendant-appellant)
1. The plaintiff's claim is dismissed.
2. Litigation costs shall be borne by the plaintiff.
The defendant shall pay to the plaintiff 285,757,574 won with 25% interest per annum from the day following the day of service of the complaint of this case to the day of full payment.
1. The parties' assertion
The plaintiff asserts that the defendant has taken over the obligation to pay for the goods of KRW 285,757,574, which he had borne by the plaintiff, or that the defendant used the trade name of "Donam" after taking over the business body from the Donam branch company, and therefore, he is responsible for the repayment of the above obligation to pay for the goods of KRW 285,757,57,574.
In regard to this, the defendant, including the defendant, 288 workers of Do mother bank, including the defendant, at the time of the bankruptcy of Do mother bank, shall take over part of 40 billion won claims such as wages and retirement allowances paid by Do mother bank corporation, as well as claims against customers of Do mother bank, and set up and operate a Do mother bank for a limited period of time by establishing a Do mother bank in a way to recover a part of the claims, and it is not possible to accept the plaintiff's claim on the ground that it did not take over or take over the debt of Do mother bank and it did not respond to the plaintiff's claim.
2. Determination:
A. Facts of recognition
The following facts may be acknowledged by taking into account the following facts: Gap evidence 1-1-3, Gap evidence 2-1-2, Eul evidence 3-1, 2-4, Gap evidence 6-1, 2-7, Eul evidence 1 through 7, Eul evidence 12-5, Eul evidence 14-29, Eul evidence 1-1 through 30-6, and Eul evidence 30-1 through 6, and the whole purport of the pleadings at the highest level, and there is no counter-proof evidence.
(1) Of the goods payment claims that were incurred by the Plaintiff Company from the supply of sea-adopted caps to the non-party South-North Korean parent company (hereinafter referred to as the “Seoul-do parent company”) with the manufacturing and processing business of mother-made and strifies until July 1999, the amount of claims that have not been paid up to the date of payment reaches KRW 285,757,574 in total.
(2) On October 31, 1999, Donam-gu discontinued its business and discontinued its business.
(3)However, the representative director of Donam-si agreed on October 28, 199 that the total amount of wages and bonuses, annual allowances, living allowances, retirement allowances, etc. for 288 workers of Donam-si shall be 4,095,458,860 won in full for the business partner's debt of 621,975,59 and the remaining amount of 493,362,980 won in total, and approximately 600,000,000 won in total and about 288 employees of Donam-si, immediately before the Donam-si's bankruptcy, and that the total amount of 30,000,000 won in total and about the above goods shall be transferred to other employees of Do, 200,100,000 won in total and over the same amount of 960,000 won in total, 205,000 won in total and over the above goods at the time of the bankruptcy.
(d)The active assets taken over from the Dommo bank like the above are only able to pay part of their overdue wage claims, before the reality, and 288 employees of the Dommo bank including the defendant, have established on November 1, 199 the "Dommo" individual company (the representative defendant) "Dommo" for the purpose of operating the textile direct control, processing, etc., and has received the remainder of their claims from the operation of the Dommo, while operating the Dommo, and most of the existing employees of the Dommo bank work in the Dommo bank work in the Dommo bank, and the business parties also maintain their existing business partners.
(5)Donam-si sold its factory site to the Korea Land Corporation on July 29, 1998 under a special agreement to remove the ground buildings on or around July 29, 1998, and thereafter leased and used the factory site from the Korea Land Corporation, and like this, Donam-si leased and used the factory site from the Korea Land Corporation, and Donam-si will cease to be closed as of June 30, 2001 due to the expiration of the lease term and the impossibility to extend it any longer.
(6)On the other hand, at the time of the default, the company's liabilities of Donam-si amounting to approximately KRW 3,00,000,000 ( KRW 1,30,000,000,000,0000,000,0000,0000,0000,0000,000,0000,0000,000,000,0000,000,0000,0000,0000,0000,0000,0000,0000,000,000,0000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000.
(b) Markets:
(1) Assumption of obligation
As to the fact that the Defendant assumed the obligation of this case against the Plaintiff of Donam-gu, there is no evidence to acknowledge it.
(2) Claim for transfer of business
(A) The business under Article 42(1) of the Commercial Act refers to a functional asset as an organic integration organized for a certain business purpose. The term "functional asset as an organic integration" refers to a functional asset as an organic combination of tangible and intangible property and facts with economic value, which functions as a source of revenue, and the functional asset as a source of revenue that systematically combines as such, becomes an object of transaction like one goods. Thus, the issue of whether a business transfer exists shall be determined depending on whether the transferee continues to engage in the same business activity as that of the transferor after the transferee transferred a functional asset as the source of revenue organized (see Supreme Court Decision 96Da826, Apr. 14, 1998, etc.).
(B)In accordance with this, it is recognized that the Defendant received all active property at the time of default, such as claims against the facilities, such as machinery and apparatus, and its customers, from the male mother bank, and that the present employees of the male mother were the previous employees of the male mother bank.
① However, according to the evidence evidence evidence evidence evidence Nos. 1 through 3, the south and south will only include the transfer of machinery, apparatus, and other things and claims owned by the south and south and will be appropriated for the repayment of debts, such as unpaid wages and retirement allowances, to 288 workers who were workers in the south and south, and then the consultation about the shortage will be made thereafter. Even if the plaintiff's transfer is based on the plaintiff's prior proof, there is no evidence to acknowledge how to deal with the business debts of the south and south, and the defendant's transfer of the business debts of the south and South will not be 33 billion won even with the exception of those of the defendant et al. for employees in the south and the south. ② The acquisition of machinery, apparatus, and other facilities from the south and the south by many employees including the defendant et al. is not directly intended for independent business activities, and the defendant et al.'s transfer of the remaining part of the company's own business facilities to secure the properties of the North and the remaining part of the company's transfer.
3. Conclusion
If so, the plaintiff's claim of this case is without merit, and it is dismissed. It is so decided as per Disposition.
Judges Lee Jin-gun (Presiding Judge)