Plaintiff (Law Firm Han, Attorney Song-soo et al., Counsel for plaintiff-appellant)

Tae Young Construction Co., Ltd. (Law Firm Taeil, Attorneys Hy Sang-op et al., Counsel for the plaintiff-appellant)

March 30, 2011

Seoul Eastern District Court Decision 2009Da46805 Decided April 28, 2010

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 42,00,000 won with the interest of 6% per annum from July 24, 2007 to the service day of a copy of the complaint of this case, and 20% per annum from the next day to the day of full payment.

1. Basic facts

The following facts are not disputed between the parties, or each of the statements in Gap evidence Nos. 1, 2, 3, 1-1 through 4, 2-1, 2-1, 2-2, and 2-1 and 2, and each of the statements in Gap evidence Nos. 1, 2-1, 2-2. The testimony of non-party 4 by non-party 4 of the first instance trial against this is difficult to believe, and there is no other counter-proof.

A. The Young C&C Co., Ltd. (hereinafter “Nonindicted Co., Ltd.”) is a company established for the purposes of electrical construction business, maintenance of fire-fighting equipment, construction business, etc., and the date of issuance on April 23, 2007, the par value of KRW 42,00,000, the date of payment on April 23, 2007, and the date of payment on July 23, 2007, and the Seoul Special Metropolitan City, the place of payment and the place of payment on July 23, 2007, and the Bank of Korea (hereinafter “the Bank of Korea”). At the time of the issuance of a promissory note in blank (hereinafter “the Promissory note”), the payee issued and transferred the Promissory Notes to the Plaintiff. After that, the Plaintiff was Nonparty 2, Nonparty 2 to Nonparty 3, and Nonparty 3 became the holder of the last Promissory Notes.

B. On June 4, 2007, the non-party company was subject to the suspension of current account transaction, and the non-party 4 presented the instant bill at the Bank of Korea's home branch during the lawful presentation period, on June 5, 2007, but was refused payment on the ground of non-transaction.

C. Nonparty 4 exercised the right of recourse against the Plaintiff, one of the endorserss of the bill of this case. Accordingly, the Plaintiff fulfilled the duty of recourse against the refusal of payment of the bill of this case. After Nonparty 4’s fulfillment of the duty of recourse as the endorser, Nonparty 4 recovered and possessed the bill of this case from Nonparty 4.

D. Meanwhile, on June 2, 2007, the non-party company held a temporary general meeting of shareholders and divided the part of the non-party company's property, which is part of the non-party company's electrical construction business, specialized fire-fighting system construction business, and divided it with the defendant, and the non-party company passed a resolution to approve the merger agreement between the non-party company and the defendant on May 15, 2007 that the non-party company continues to exist even after the above division. The non-party company also passed a provisional general meeting of shareholders on June 2, 2007. Article 4 of the written agreement for the merger between the non-party company and the defendant entered into the above merger agreement with the non-party company and the non-party company on June 2, 2007 provided that the non-party company and the defendant are not jointly and severally liable under Article 530-9 (3) of the Commercial Act (in case of the merger by division, the company divided may determine only the liabilities related to the company's property invested among the divided company's obligations).

E. On June 6, 2007, the non-party company and the defendant divided the non-party company's electrical construction business and the specialized fire-fighting system construction business of the non-party company into the non-party company's division and merger (the defendant's succession to the rights and obligations of the non-party company's electrical construction business and specialized fire-fighting system construction business) by a resolution of the general meeting of shareholders on June 2, 2007, and the non-party company and the defendant decided not to bear joint liability. Thus, since the non-party company and the non-party company decided not to raise an objection to the related company within one month from the date of the publication, the non-party company and the defendant made a merger announcement to the non-party company that raised an objection to the merger after this merger

F. On July 9, 2007, the non-party company completed the above merger registration on July 12, 2007, respectively.

2. Judgment on the plaintiff's assertion

A. Summary of the plaintiff's assertion

The plaintiff, as the issuer of the bill of this case, knew that the actual first transferee of the bill of this case was the plaintiff, and the plaintiff performed his/her duty of recourse and recovered the bill of this case, and notified the non-party 1, the representative director and the first endorser of this case, so the non-party company was well aware that the plaintiff was the creditor of the non-party company, and the non-party company did not perform the peremptory procedure prescribed in Articles 530-9 (3) 1, 530-11 (2) and 527-5 (1) 2) of the Commercial Act against the plaintiff. Thus, the defendant is jointly and severally liable to pay the non-party company the amount of 42,00,000 won and delay damages.

B. Determination

(1) According to Articles 530-9(1) and (3), 530-11(2), and 527-5(1) of the Commercial Act, if a company established following a merger by split or a company surviving a merger is jointly and severally liable for the company's obligations before the merger by split, the divided company shall be jointly and severally liable for the company's obligations. However, if a company surviving a merger by split or split determines that only the company which has invested its obligations among the obligations of the company divided by split and merger should be liable for the company's obligations, the divided company shall be subject to special resolution at the general meeting of shareholders, the divided company shall be deemed to be converted into the divided obligation relationship. However, even if the divided company fails to make a public announcement to the creditors under Article 527-5(1) of the Commercial Act or does not make a peremptory notice to the creditors known to the company, the company established through a merger by split shall be jointly and severally liable for the obligations to the creditor before the merger by split or split (see Supreme Court Decision 2003Da

(2) Therefore, it is difficult to find that the Plaintiff, as the representative director of the non-party company, notified the non-party company's non-party 1 as the holder of the bill of this case, of the fact that the Plaintiff was aware that the Plaintiff was a creditor of the claim of this case against the non-party company, the issuer, as the holder of the bill of this case, and there is no other evidence to find otherwise. Rather, in full view of the result of the court's submission of financial transaction information with respect to the bank head of the Bank of Korea branch of this case, it is difficult to find that the Industrial Bank of Korea issued the bill of this case on June 5, 2007 by Non-party 4, who was the last holder of the bill of this case, and the testimony of Non-party 4, who was the witness of the first instance court, refused to pay the bill of this case for reasons of non-party 4, and then notified the non-party company's non-party 1 as the holder of the bill of this case's non-party 5 of this case's bill of this case.

3. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is without merit. It is so decided as per Disposition.

Judges Hong-chul (Presiding Judge)

1) In the case of division and merger, the company to be divided may determine by a resolution under Article 530-3(2) that only the liabilities for the invested property shall be borne by the company with respect to the obligations of the divided company, which is an existing company which receives an investment through the division

2) The provisions of Articles 374(2), 439(3), 522-3, 527-2, 527-3 and 527-5 shall apply mutatis mutandis to a merger through division.

3) The Company shall make a public notice within two weeks from the date of a resolution of approval of the general meeting of shareholders under Article 522 that any creditor who has an objection to the merger shall submit it within a period of not less than one month and shall demand that the creditor known to do so separately.