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1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
Purport of claim and appeal
1...
Reasons
1. Basic facts
A. From July 6, 2011 to August 22, 2011, the Plaintiff agreed to lend construction machinery at the E-type site of Seongbuk-gun, Seongbuk-gun from around July 6, 201 to receive KRW 27.6 million.
B. The foregoing Corporation was suspended due to the shortage of funds by the project owner, and C did not pay the Plaintiff KRW 16.7 million out of the above usage fees (hereinafter “instant usage fees”), and D, the representative director of C, prepared a certificate of personal cash storage to the Plaintiff, with the meaning that D would pay the above obligation individually.
C. The Defendant was established on March 19, 2013, and was transferred a construction business license from C on May 15, 2013.
[Ground of recognition] Facts without dispute, Gap evidence 1 to Gap evidence 6, Gap evidence 8, Eul evidence 17 (including provisional number; hereinafter the same shall apply), the purport of the whole pleadings
2. The assertion of the parties and their determination
A. The plaintiff's assertion is a company substantially identical with C or a company taking over the business of C, and the defendant is obligated to pay KRW 16.7 million to the plaintiff jointly with D who is the representative director of C and C.
B. If the Defendant established a new company in which the form and content of the company are substantially identical to C in order to evade debts, the establishment of the new company constitutes abuse of the company system in order to achieve the illegal purpose of evading debts of the existing company. In such a case, the assertion that the above two companies have a separate legal personality against the creditors of the existing company is not permissible under the principle of trust and good faith. Thus, the creditors of the existing company may demand the performance of obligations against either of the above two companies.
Here, whether a new company is established with the intention to evade debts of an existing company is at the time of closure of the existing company.