(영문) 춘천지방법원 강릉지원 2018.11.13 2017가단34116

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(영문) 춘천지방법원 강릉지원 2018.11.13 2017가단34116

대여금

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1. The plaintiff's claim is dismissed.

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

Reasons

1. Facts of recognition;

A. On April 16, 2012, the Plaintiff lent C a total of KRW 28 million on May 17, 2012, and KRW 28 million on May 17, 2012. D lent a total of KRW 10 million on August 14, 2012, and KRW 26 million on May 2, 2012, and C guaranteed the above loan obligations.

B. C operated a restaurant business with the trade name “F” in Gangseo-si E, and on January 12, 2016, the Plaintiff: (a) attached and collected the claim for the use of the credit card to each credit card company by the Seocheon District Court Gangseo-gu 2016TTT 2016T 31, using the above loan 28 million won as the claim claim amounting to KRW 15.6 million out of the above loan 26 million; and (b) thereafter, the name of the above restaurant operator was changed to the Defendant who is the husband of C.

[Ground for Recognition: Evidence A (Partial number omitted, hereinafter the same shall apply)

2) Each entry in Eul evidence 1, witness D's partial testimony, the purport of the whole pleadings

2. Determination on the cause of the claim

A. C, which bears a total of KRW 3,338,00,00 for the Plaintiff’s assertion, transfers the “F” restaurant business to the Defendant. Since the Defendant runs a business using the above trade name as it is, the Defendant is obligated to pay the Plaintiff the above loan amounting to KRW 3,338,00 pursuant to Article 42(1) of the Commercial Act.

B. In the event that the transferee continues to use the transferor’s trade name, the transferee is also liable for the third party’s claim arising from the transferor’s business (Article 42(1) of the Commercial Act), and the fact that the name of the restaurant operated by C was changed to the Defendant despite the change of the name of the business operator in the name of the restaurant in the name of the Defendant is recognized as above. However, in light of the following circumstances revealed in the above facts, namely, C and the Defendant are married parties, and the Plaintiff’s seizure of the sales claim of C, making it difficult to operate the restaurant in the name of C, and the change of the name of business operator was made, the Defendant

참조조문

-상법 제42조 제1항

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