In cases where a transferee of a business is liable to repay the debt of a transferor pursuant to Article 44 of the Commercial Act, whether the obligee can be readily concluded that the claim against the transferee of a business has been transferred as a matter of course solely on the ground that the obligee transferred the claim against the transferor (negative), and whether the above claim shall meet the requirements for setting up against the transfer of a claim for the transfer of a business (affirmative), and whether the above legal doctrine likewise applies to the cases under Article 42 of the Commercial Act concerning mutual use (affirmative)

Articles 42 and 44 of the Commercial Act, Article 450 of the Civil Act

Supreme Court Decision 2009Da23696 Decided July 9, 2009 (Gong2009Ha, 1433)

Cable investment partnership loans limited liability companies

S. S. S. Assets Management Loans

Defendant (Attorney Or-ho et al., Counsel for defendant-appellant)

Seoul High Court Decision 2011Na94297 decided November 9, 2012

The appeal is dismissed. The costs of appeal are assessed against the Plaintiff’s successor.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. In the event that a transferee does not continue use the transferor’s trade name, the transferee is also liable for reimbursement to the transferee if the transferee has advertised that the transferee will take over the obligations arising from the transferor’s business (Article 44 of the Commercial Act). In this case, the obligee’s claim against the transferor and the claim against the transferee against the transferee cannot be deemed as a separate claim which legally causes different causes, and thus, it cannot be deemed that the obligee’s claim against the transferor is naturally subordinate to the disposal of the claim against the transferor against the transferor. Therefore, it cannot be readily concluded that the obligee’s claim against the transferor is transferred to another person, solely on the ground that the transferor transferred his claim against the transferor, and even if transferred, the obligor must meet the requirements for setting up against the transferee’s transfer (see Supreme Court Decision 2009Da23696, Jul. 9, 2009). This legal doctrine likewise applies to the case under Article 42 of the Commercial Act concerning the transferee’s liability that belongs to a trade name,

The lower court rejected the Plaintiff’s Intervenor’s assertion that the Korea Exchange Bank (hereinafter “Korea Exchange Bank”) acquired the instant claim in sequential order on the ground that there was no evidence to acknowledge that there was neither transfer of the instant claim nor notification to the Defendant, along with the instant claim transfer, of the instant claim transfer, even though it did not have any claim under Article 42 of the Commercial Act (hereinafter “instant claim”).

Examining the reasoning of the judgment below in light of the above legal principles, the court below did not err by misapprehending the legal principles on liability under Article 42 of the Commercial Act, which affected the conclusion of the judgment, as alleged in the ground of appeal.

2. The court’s exercise of the right to explanation is that the parties’ assertion is inconsistent, incomplete or unclear, giving them an opportunity to correct or supplement them, and urge them to submit evidence of the dispute (see, e.g., Supreme Court Decision 2001Da79013, Mar. 12, 2004). In addition, the issue of whether a party’s application for resumption of pleading is subject to the court’s discretion, and the issue of whether a party’s application for resumption of pleading belongs to the court’s discretion. Thus, if a party fails to submit a defense even though the party had sufficient opportunity to submit a defense, and if the party filed an application for resumption of pleading for the purpose of defense and proof after the closing of argument, it cannot be said that the court rejected the application for resumption of pleading and thus cannot be said to be unlawful (see, e.g., Supreme Court Decision 8

According to the records, the defendant alleged that "the plaintiff did not acquire the claim of this case against the defendant, who was a transferee of the loan of this case from the Korea Exchange Bank that only acquired the loan of this case from the Korea Exchange Bank, which belongs to its trade name (the preparatory documents as of January 9, 2012)," and the plaintiff's lawsuit administrator stated that "the transferee of the loan of this case can naturally assume the responsibility of Article 42 of the Commercial Act against the defendant, who is a transferee of the loan of this case, who belongs to trade name," and that the plaintiff's successor maintained such claim (the preparatory documents as of February 29, 2012), ② the defendant again asserted as above (the preparatory documents as of May 4, 2012), and the plaintiff's successor did not respond to the above argument by October 5, 2012, which is the date of closing the argument of the court below, and the court below rejected the plaintiff's claim that the plaintiff's successor of this case did not accept the plaintiff's claim of this case.

In light of the above facts in light of the legal principles as seen earlier, in the instant case where whether the procedure of transferring claims separate from the transfer of the instant loan claims is needed for a considerable period of time, the court below did not exercise the right to explanation as to the order transfer of the instant claim from the Korea Exchange Bank and notification of the transfer of the instant claim, and did not accept the Plaintiff’s application for resumption of argument by the Plaintiff’s succeeding intervenor. It did not err in the misapprehension of legal principles as to the non-exercise of the right to explanation and the resumption of argument, which affected the conclusion of the judgment, as alleged in the grounds of appeal.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)