2018Da288730 Claims

Credit Guarantee Fund

Attorney Cho Sang-hoon et al., Counsel for the defendant

A Stock Company

Law Firm LLC, Attorney Lee Dong-won

Attorney Yang Soo-soo, Counsel for the plaintiff-appellant

Incheon District Court Decision 2017Na66087 Decided October 30, 2018

April 25, 2019

The judgment below is reversed, and the case is remanded to the Incheon District Court.

The grounds of appeal are examined.

1. It is difficult to view that a third party’s claim liable under Article 42(1) of the Commercial Act by a transferee of a business who uses a trade name is not required to arrive at the time of the transfer of business, even if the third party’s claim is not at the time of the transfer of business, and that the transferee should be held liable for the debts incurred in the near future at the time of the transfer of business (see Supreme Court Decision 2004Da35656, Dec. 9, 2004); 2. A. Review of the reasoning of the lower judgment and the record reveals the following.

(1) On October 8, 2014, C and E established the Defendant on October 8, 2014, designating C and E’s wife as the representative director, in order to operate an existing automobile maintenance business facility under the trade name of C and B by investing one-half shares, and to conduct the automobile maintenance business as the principal office.

(2) On January 1, 2015, the Defendant registered its business and started its business after receiving delivery of the land and buildings of the said head office from C at that time.

(3) On April 21, 2015, C transferred all the Defendant’s shares to E, and thereafter resigned from the Defendant’s representative director on July 1, 2015, and E was appointed as the Defendant’s representative director on July 1, 2015 and thereafter, E actually operated the Defendant.

(4) On July 5, 2012, the Plaintiff entered into a credit guarantee agreement with C, and C was loaned KRW 648 million from D based on the said credit guarantee agreement.

(5) On August 9, 2015, due to a credit guarantee accident involving delay in the interest of the above loan, the Plaintiff subrogated for KRW 659,216,968 of the principal and interest of the loan to D Co., Ltd. on November 26, 2015. (b) According to these facts according to the judgment of the court below, even if the Defendant is deemed to have taken over B’s business from C, as in the judgment of the court below, such transfer of business is likely to be deemed to have been completed on July 1, 2015 when the Defendant transferred the Defendant’s share to E and then transferred it to the Defendant’s representative director at any time, and at any time when C had resigned the Defendant’s representative director at any time on July 1, 2015. Moreover, the Plaintiff’s claim for indemnity against C incurred on November 26, 2015 when the Plaintiff subrogated for the Defendant’s loan obligation.

Therefore, the lower court should have deliberated on whether the Plaintiff’s claim for indemnity occurred at the time of business takeover and at the time of business takeover, and should have determined whether the Plaintiff’s claim for indemnity falls under a third party’s claim to which Article 42(1) of the Commercial Act applies. Nevertheless, without examining and determining the above matters, the lower court partially accepted the Plaintiff’s claim on the ground that the Plaintiff’s claim for indemnity amount constituted a claim that the Defendant is liable pursuant to Article 42(1) of the Commercial Act solely based on the reasons indicated in its reasoning. In so determining, the lower court erred by misapprehending the legal doctrine on the liability of the transferee for mutual continuity, thereby adversely affecting the conclusion of the judgment. The ground of appeal on this part is with merit.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hwan

Justices Park Sang-ok

Justices Lee In-bokon

Justices Noh Jeong-hee