1. The part against the defendant in the judgment of the first instance shall be revoked;

2. The plaintiff's claim against the defendant is dismissed.

3...

1. Basic facts

A. The Plaintiff is a person who runs the wholesale business, etc. of agricultural products under the trade name of “D,” and C is a person who established and operated the Fvalescent Hospital located in Busan Shipping Daegu from May 30, 2007 to October 31, 2014 (hereinafter “instant hospital”).

B. After concluding a contract with C to supply agricultural and fishery products, etc. to the instant hospital, the Plaintiff supplied agricultural and fishery products, etc. to the instant hospital until August 2014. The unpaid amount of goods as of the end of August 2014 is KRW 9,324,600.

[Ground of recognition] Facts without dispute, Gap 1, 2 evidence, Eul 1 evidence, the purport of the whole pleadings

2. The assertion and judgment

A. The Plaintiff’s assertion (i.e., the Plaintiff supplied agricultural and fishery products to the instant hospital operated by C until the end of August, 2014, and the Defendant, around October 31, 2010, took over all assets necessary for the instant hospital’s trade name, place of business, etc. from C and continues to use its trade name. As such, the Defendant is a transferee of business who continues to use its trade name pursuant to Article 42(1) of the Commercial Act, and is obligated to pay the Plaintiff the balance of the price of the goods unpaid to the Plaintiff and the delay damages therefrom.

The establishment, operation, medical treatment, etc. of the Defendant’s medical institution does not fall under the business of the Commercial Act, and even if it falls under the business, the Defendant did not receive from C the business of the instant hospital.

B. (i) Whether the establishment and operation of a medical institution constitutes a business stipulated in Article 42(1) of the Commercial Act is subject to business transfer under the Commercial Act. Since it is a merchant's organizational property or a merchant's business activity, the provisions on business transfer under the Commercial Act apply only to the business transfer of the merchant (see Supreme Court Decision 68Da1560, Mar. 25, 1969) and the business operation under the Commercial Act continues to be of the same kind for profit-making purposes.