208Na20093 Guarantee obligations

○○ (71 - 1)

Mabiode Mag-si

△△ Co., Ltd.

Chicago-si

Representative Director 000

Attorney Park Jae-soo, Counsel for the defendant-appellant 000

Suwon District Court Decision 2007Kadan79790 Decided August 14, 2008

January 20, 2009

March 31, 2009

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 31, 630, 000 won with 20% interest per annum from October to the full payment day.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

A. On October 00, 2006, the Plaintiff managed Nonparty Company’s laundry store (hereinafter “instant store”) located in △△ department located in Seoul, with △△ (hereinafter “non-party Company”) as the Plaintiff. However, instead of paying KRW 30,00,00 with the deposit money, the Plaintiff is paid 25% of the total sales amount of the said store with the fee. The term of the contract was determined on October 0, 2007 by setting the intermediate management contract (hereinafter “instant management contract”).

B. On October 00, 2003, the non-party company was a company established and operated by A to commission the representative director. The non-party company has operated its business by installing its head office and laundry factory in Young-si and disposing of laundry collected from the non-party company located in the department store, etc.

C. Meanwhile, the non-party company entered into a contract for the transfer and takeover of factory assets (hereinafter "the contract of this case") with B around October 00, 2006, setting the price of KRW 200,000, and KRW 000. The main contents are as follows.

(1) The non-party company shall sell its assets to B, and the non-party company shall accept the official forum of the non-party company on October 0, 2006.

(2) The non-party company is receiving 20% of its profits without involvement in the management. However, the non-party company is unable to exercise its property rights over 20%, and 20% of its profits shall be borne by the non-party company, and the representative director of the defendant company to be newly incorporated shall be in charge of B.

(3) If a special profit occurs due to redevelopment of a factory site, etc., reinvestment in the facility shall be caused and re-consulted later.

(4) The non-party company shall pay 50% of the total sales from the store to the defendant, and the non-party company shall actively cooperate in the factory operation of B, and the compensation for the laundry lawsuit shall be dealt with in consultation with the non-party company B.

(5) The monthly salary class B is KRW 2,000,000, and the activity expenses of the non-party company shall be subsequently consulted.

(6) The adjustment of personnel of the non-party company's factory shall be completed by the plaintiff until October 00, 2006, and thereafter this adjustment shall be made again.

(7) Five stores of the non-party company shall be operated in the current state, and the non-party company and B shall prepare a service contract with the non-party company for each store.

D. B paid KRW 180,00,000 to A on five occasions from October 00, 2006 to October 2006, 2006 under the instant asset transfer agreement.

E. B established a defendant company on October 00, 2006. At the time of incorporation, A, the representative director of the non-party company, was appointed as a director of the defendant company, and the non-party company and the defendant company are located at the same place of office.

F. The defendant company acquired the factory and equipment of the non-party company from around October 0, 2006, and the non-party company acquired the store of this case and the store located in the Sung-nam △△△△△ branch among the stores operated by the non-party association.

G. Even after the expiration of the management contract of this case on October 007, 2007, the Plaintiff managed the store of this case to the Lieutenant on October 2007, and the Plaintiff did not receive KRW 1,630,000 from the non-party company as commission for the portion of sales from the 0th of the same month to the 00th of the same month.

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A. The parties’ assertion

The plaintiff asserts that the defendant is not obligated to return the above deposit or pay the fee, since the contract was not entered into with the plaintiff, and the defendant does not have any obligation to return the deposit or pay the fee.

B. Judgment on the ground of the Plaintiff’s claim

(1) The plaintiff asserts that the defendant company and the non-party company are substantially identical to the defendant company, and that since the representative director of the non-party company A, a director of the non-party company, establishes a new company separate from the non-party company and abused the company system for the purpose of evading the non-party company's obligations, the defendant is responsible for the plaintiff to perform

In light of the legal principle of denial of legal personality, where a company has the external form of a juristic person, but it merely takes the form of a juristic person and it is actually used as a means to avoid the application of laws against its hinterlands, the denial of liability of a person behind the corporate entity by asserting that even though it is an external appearance of a company, the legal effect of the company is attributed only to the company on the ground that the person behind the corporate body is separate, shall not be permitted against justice and equity as an abuse of legal personality in violation of the principle of good faith, and therefore, it shall be deemed that the person behind the corporate body shall be held liable for the act of the company as well as the person behind the corporate body at the time of its closure (see, e.g., Supreme Court Decision 97Da21604, Jan. 19, 201); and, in order to be subject to such legal principle, it shall be determined to the extent that the existing company has been newly incorporated with the purpose of evading its obligations and its existing company at the time of establishment (see, e.g., Supreme Court Decision 20000 newly incorporated company., the existing company., newly incorporated company.

As to whether the above legal principles can be applied in this case, comprehensively taking account of the overall purport of arguments as follows: ① the address of the defendant company and its head office are identical and similar to each other; ② the defendant company used the non-party company's factory and various equipment and its business purpose are similar; ③ the representative director of the non-party company was a director of the defendant company; ④ the non-party company was receiving dividends from the defendant company (it is reasonable to see that the non-party company succeeded to the status of B under the above asset transfer contract upon the incorporation of the defendant company; ② the non-party company was allowed to consult with the non-party company; the measures to cope with laundry lawsuit; the defendant company's payment of KRW 00,000,000 won to the non-party company; ② the defendant company's total amount of KRW 00,000,000,000 won to the non-party company; ② the defendant company's testimony and statement of KRW 1 to 200,000,000 won to the defendant company's testimony and statement No.

In light of the above facts, ①, ② the facts are incidental results arising from the Defendant Company’s operation of the same kind of business upon receipt of the assets of the non-party Company, and it cannot be deemed that the form and content of the non-party Company and the Defendant Company are substantially the same. ④ The facts are the contents of the non-party Company’s assets transfer contract of this case in order for the non-party Company to receive the right of know-how transferred from the non-party Company, and the non-party Company and the non-party Company were merely the contents of the non-party Company’s assets transfer contract of this case in order to receive the right of know-how transferred from the non-party Company, and it is not sufficient to recognize that the assets of the non-party Company were used as the Defendant Company, as argued by the plaintiff.

(2) The plaintiff asserts that the defendant company is responsible for the repayment to the plaintiff in accordance with Article 42 (1) of the Commercial Act, since the defendant company acquired all of the business of the non-party company from the non-party company and continues to use the trade name of the non-party company.

In order to fall under the "use of the trade name" under Article 42 (1) of the Commercial Act, the trade name used by the transferor and the trade name used by the transferee shall not be the same, but the trade name before and after the transfer should be common in the main part (see Supreme Court Decision 96Da3826 delivered on April 14, 1998, etc.). However, when comparing the non-party company's trade name, Dol-gu Co., Ltd. and Dol-gu Co., Ltd., Ltd., the defendant company's trade name, Dol-ri" means that both companies run the laundry business.

Compared with this, the trade name before and after the transfer of business cannot be considered to be common in the main part of the trade name. Thus, the plaintiff's above assertion is without merit, without considering further in the remaining part. The plaintiff's argument is without merit.

(3) Even though the defendant company did not continue to use the trade name of the non-party company, the plaintiff argued that the defendant company will guarantee the plaintiff the fee equivalent to 15,00,000,000 won and 25% of monthly sales, which are part of the defendant company's claim for the return of deposit, around October 2007, and around the end of October, 200, the defendant company is liable for the repayment to the plaintiff pursuant to Article 44 of the Commercial Act, since the defendant company advertised the non-party company to take over its obligations arising from the business of the non-party company.

B, the representative director of the Defendant Company, in contrast to the fact that the Plaintiff, who is the representative director of the Defendant Company, said that the Plaintiff would guarantee the Plaintiff the Plaintiff’s 15,000 won and monthly fee of KRW 25%, which are part of the KRW 30,00,000, and KRW 000.

There is no evidence, and even if the above argument of the plaintiff is acknowledged, it cannot be said that the above argument of the plaintiff is advertising the assumption of obligation, so the plaintiff's above argument is not reasonable.

Therefore, the judgment of the court of first instance is unfair, and the plaintiff's claim of this case is revoked and dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Tae-il

Judges Kim Jong-soo

Judge Oh Jeong-man