2. The costs of appeal arising between the Plaintiff and the Defendant are assessed against the Defendant.

A. B, the Defendant’s husband, from January 2007 to September 30, 2016, operated the wholesale and retail shop for construction, such as plastic containers (hereinafter “D”) with the trade name “D” in the following cities:

B. The Plaintiff is a company that manufactures and sells solid containers, etc., and has traded in a manner that supplies solid containers, etc. with D operated by B from January 5, 2007 to August 31, 2016, and receives the price within 45 or 90 days from the date of issuance of the tax invoice. As of August 31, 2016, the amount of the Plaintiff’s unpaid goods payment for B is KRW 17,218,200.

C. Meanwhile, the Defendant, from November 18, 2016, operates the wholesale and retail shop for construction, such as plastic containers (hereinafter “E”), with the trade name “E,” at the same place as D operated by the husband B, who is the husband.

[Ground of recognition] Facts without dispute, entry of Gap 1 and 3 evidence, purport of the whole pleadings

2. Determination

A. According to Article 42(1) of the Commercial Act, where a transferee of a business continues to use a transferor’s trade name, the transferee is also liable to repay a third party’s claim arising from the transferor’s business.

The issue of whether a transfer of business can be seen as a transfer of business ought to be determined depending on whether the transferee can be deemed to continue business activities such as the transferor, which had been performed by the transferor after acquiring functional properties as sources of revenue organized organically (see, e.g., Supreme Court Decision 2005Da602, Jul. 22, 2005). The transfer of business does not necessarily require an explicit contract between the parties to the transfer of business and is also possible under an implied contract.

(See Supreme Court Decision 2007Da17123, 17130, Jan. 15, 2009). In addition, the continuous use of a trade name under Article 42(1) of the Commercial Act does not require the same between the trade name used by the transferor and the trade name used by the transferee. However, the continuous use of a trade name does not require all the same.