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1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. The Plaintiff is a legal entity that manufactures and sells refined fertilizers, etc., and the Defendant, from May 13, 2002, run a fertilizer retail business, etc. with the trade name “C” in the Gyeongbuk-gun, Gyeongbuk-gun, Inc., and closed the business on August 31, 2012.
B. The Plaintiff supplied fertilizers products, etc. to the Defendant from April 30, 2010, and was not paid KRW 77,868,457, out of the amount of goods supplied until March 31, 2012.
C. After the Defendant closed down “C”, the Defendant’s husband, continued to conduct the same business as the Defendant’s husband’s business in the same place on October 10, 2012. The Plaintiff supplied D with fertilizers products, etc. to D even after the Defendant’s cessation of business, and continued to conduct transactions until December 31, 2013, while selling them to D, and managed D as the head of one business office following the transaction with D.
【Facts without dispute over the grounds for recognition, Gap evidence 1, 2, Eul evidence 1, the purport of the whole pleadings
2. In light of the above facts, even if there was no explicit agreement between the defendant and D on the business transfer, it is reasonable to view that D actually acquired the business from the defendant (the defendant did not dispute the plaintiff's assertion on the business operation). Article 42 (1) of the Commercial Act provides that "if the business transferee continues to use the transferor's trade name, the transferee shall also be liable for the third party's claim arising from the transferor's business operation." Article 45 of the Commercial Act provides that "if the business transferee is liable for the repayment pursuant to Article 42 (1), the obligation of the transferor to the third party becomes extinct after the lapse of two years from the date of the business transfer." Article 42 (1) of the Commercial Act provides that "if the business transferee is liable for the repayment pursuant to this provision, the period of the transferor's liability to the third party is the exclusion period, and therefore the existence of such period has expired as a matter of ex officio examination, and the court