[1] The meaning of "invested property" under Article 530-9 (2) of the Commercial Act

[2] In a company division pursuant to Article 530-9 (2) of the Commercial Act, in case where it is recognized that there is no possibility that a creditor may incur unexpected damages, such as being involved in the company division and being in a position prior to the company division, whether the joint and several liability for the creditors of the newly incorporated company and the creditors of the company divided shall be restored solely on the ground that the creditor omitted the " procedure for individual peremptory notice to known creditors" (negative)

[1] In the event of a division of a company, the company to be incorporated or the company surviving the division is jointly and severally liable for the obligations of the company prior to the division (Article 530-9(1) of the Commercial Act). However, where the company to be divided establishes a company by a resolution approved by the general meeting of shareholders with the number of not less than 2/3 of the voting rights of shareholders present at the meeting and not less than 1/3 of the total number of issued and outstanding shares, a joint and several liability of the company to be incorporated shall be excluded in accordance with Article 530-9(2) of the Commercial Act (Article 530-9(2) of the Commercial Act). In this case, the term "invested property" of the company to be incorporated shall not mean a specific property of the company to be divided, but shall mean a specific business with organizational integrity and property necessary for such business.

[2] Where a company that is divided and a newly incorporated company does not bear joint and several liability for the company's obligations prior to the division, changes in the debtor's liability property has caused significant impacts on creditors' interests, and thus, if such individual peremptory notice is omitted, the company that is divided and the company that is divided shall be jointly and severally liable to the creditors, if the creditors are involved in the division and are in the position of being aware of the company division and there is no possibility of causing unexpected damages, such as where creditors are in the position of being involved in the division and have given prior knowledge of the company division. However, in a case where it is acknowledged that there is no possibility of causing unexpected damages such as a waiver of objection against the division of company, the company that is divided and the newly incorporated company shall be jointly and severally liable to the creditors by omitting an individual peremptory notice.

[1] Articles 530-3(2) and 530-9(1) and (2) of the Commercial Act / [2] Articles 530-3(2), 530-9(1), (2), and (4), and 527-5(1) of the Commercial Act

[2] Supreme Court Decision 2003Da25973 decided Aug. 30, 2004 (Gong2004Ha, 1594)

Suwon Automobile Sales Co., Ltd. (Law Firm Shin & Kim, Attorney Hun-tae, Counsel for the defendant-appellant)

Suwon International Co., Ltd. and one other (Law Firm Sejong, Attorneys Kang Shin-son et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2007Na115500 decided September 11, 2008

All appeals are dismissed. The costs of appeal are assessed against the Plaintiff.

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

In the event of a division of a company, the company to be incorporated or the company surviving the division is jointly and severally liable for the obligations of the company prior to the division (Article 530-9(1) of the Commercial Act). However, where the company to be divided is to be incorporated by a resolution approved by the general meeting of shareholders with respect to the number of not less than 2/3 of the voting rights of shareholders present at the meeting after the division plan is formulated pursuant to Article 530-3(2) of the Commercial Act and not less than 1/3 of the total number of issued and outstanding shares, a joint and several liability of the company to be incorporated with respect to the obligations of the company to be incorporated may be excluded (Article 530-9(2) of the Commercial Act). In this case, the term “invested property” shall not mean the specific property of the company to be divided, but shall mean a specific

According to the facts established by the court below based on its employment evidence, treatment Co., Ltd. (hereinafter referred to as "treatment") holds a temporary shareholders' meeting on July 22, 200, with respect to the division plan (hereinafter referred to as "this case's division plan"), which is a newly incorporated company in the trade sector of treatment and construction as a newly incorporated company in accordance with the personal division plan, approved the division plan (hereinafter referred to as "the above division plan"), and Article 3 (2) of the division plan of this case provides that the newly incorporated company shall bear only the liabilities (including liabilities) with respect to the assets invested from the divided company's liabilities unless otherwise stipulated in the division plan of this case, and shall not be jointly and severally liable for the debt of the divided company that is not transferred to the newly incorporated company, and Article 10 (1) 1 of the Act provides that "the liabilities related to the installment plan of this case's investment and debt of the newly incorporated company, which are equivalent to those of the company's investment and debt of the newly incorporated company, shall be deemed to constitute "the net assets related to sale and debt of this case'."

Based on the above interpretation of the "debt on the invested property", according to the facts acknowledged by the court below, the obligation to return the above national and public bonds (hereinafter referred to as "the obligation of this case") that the Plaintiff loaned to the Plaintiff for treatment with respect to the national and public bonds held by the Plaintiff does not fall under the obligation related to the business in which treatment was performed, and since the obligation of this case does not fall under the obligation related to the business in which treatment was continuously carried on after the division of the Defendant Treatment International, and thus the obligation of this case does not fall under the "liability related to the property invested by treatment of Defendant Treatment International," as provided in Article 10 (1) 1 (a) of the division plan of this case. In addition, Article 10 (1) 3 of the division plan of this case provides that "a trade company and construction company succeed to the obligation such as collateral within the scope of actual collateral value of the asset transferred to the newly incorporated company and the obligation incidental to the asset transferred to the newly incorporated company, and therefore, the obligation of this case does not fall under the obligation of this case 10 (1).

Therefore, the judgment of the court below that the defendant did not bear joint and several liability and divided liability for the debt of this case in accordance with the division plan of this case is just and acceptable in light of the above legal principles and records, and there is no error in the misapprehension of legal principles as to the debt of the property invested in the grounds of appeal.

2. Regarding ground of appeal No. 2

Where a company that is divided and a newly incorporated company does not support joint and several liability for the obligations of the company that is divided before the division, changes in the debtor's property has a significant impact on the creditor's interest and thus, if the company that is divided for the protection of creditors does not have such individual peremptory notice, such creditors shall be jointly and severally liable for the company that is divided with the newly incorporated company (see Supreme Court Decision 2003Da25973, Aug. 30, 2004). However, in cases where it is deemed that there is no risk of causing unexpected damages, such as where creditors are involved in the company division and are aware of the company division in advance, and there is no circumstance to deem that there is a waiver of an objection against the company division, such individual peremptory notice has been omitted, and the company that is divided and the newly incorporated company shall be jointly and severally liable for the repayment to the creditors.

According to the reasoning of the judgment below, the court below acknowledged the facts of the judgment based on its adopted evidence, and judged that the plaintiff had already been aware of the detailed matters prior to the corporate division of treatment, and it is reasonable to view that there is no risk of causing losses due to the corporate division of this case as a creditor who was well aware of the fact that treatment by participating in the corporate improvement work of this case was divided in the personal form excluding joint liability. Thus, even if treatment did not separately notify the plaintiff to raise an objection to the corporate division plan of this case, it cannot be deemed that the joint and several liability of the defendants excluded pursuant to the corporate division plan of this case cannot be restored. This decision of the court below is just in light of the above legal principles and records, and it is not erroneous in the misapprehension of legal principles as to the procedure

3. As to the third ground for appeal

The court below rejected the plaintiff's assertion as to the subsidiary nature of the security right on the ground that the disposal of the secured claim is included in the disposal of the secured claim, and the security right is not transferred to another person or security of other claims, except in special circumstances. However, in this case, the Export-Import Bank of Korea, the creditor of the Export-Import Bank of Korea, disposes of the secured claim for deferred payment export funds to a third party, which is a local manufacturer of a vehicle at India (hereinafter referred to as "DMIL"), which is an object of the secured claim, not the transfer of the secured claim, but the transfer of the secured claim due to the transfer of the secured claim to a third party, is merely a change in the debtor's succession, and it does not apply the subsidiary nature of the security right due to the transfer of the secured claim. However, the court below rejected the plaintiff's assertion as to the subsidiary nature of the secured claim on the ground that the debtor and the secured debtor were treated as the entire debtor and the secured debtor were separated by succession of the obligation, in light of related legal principles and records.

4. As to the fourth ground for appeal

After recognizing the facts based on the employment evidence, the court below held that it is difficult for the Export-Import Bank of Korea to appropriate the claim for the deferred payment export fund from the sale price of the government bonds of this case, and it is difficult to view that it appropriated it for the payment of the claim for the loan for the funds for cement production facilities and equipment of cement cement cement in China, which is not related to the above, in light of the facts findings and records, and there is no violation of the rules of evidence as alleged in the

5. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)