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1. The Defendant’s KRW 64,515,248 as well as 5% per annum from July 1, 2019 to October 6, 2019 as to the Plaintiff.
Reasons
1. Facts of recognition;
A. The Plaintiff, a corporation operating livestock products and freezing meat wholesale and retail business, etc., supplied livestock products, such as meat and pigs, to the limited-type restaurants located in Yangcheon-gu Seoul E and the third floor (hereinafter “instant restaurant”) from 2016 to June 2019.
B. From January to December 2017, 2017, F G 2016, to December 2, 2017, H I 3, Co., Ltd. from October 2017 to October 2018, JI 42018 to June 3, 2019 / [Defendant] K
B. The trade name and representative of the instant restaurant have been changed as indicated in the following table, and the Defendant, from October 2018, was finally operating the instant restaurant by transferring it to another restaurant, and was closed on June 30, 2019.
【Ground of recognition】 The fact that there has been no dispute, entry of Gap's 1 through 6, the purport of whole pleadings
2. The assertion and judgment
A. The Plaintiff’s assertion 1) The instant restaurant operated a limited restaurant with the same or similar business entity, such as “H” and “C,” in the same place of business. From October 2018 to June 30, 2019, the Defendant succeeded to the business of the instant restaurant and operated a limited restaurant with the same or similar business entity and trade name, and operated the limited restaurant with the same or similar business name until the closure of the business. As such, the Defendant is liable to pay the total amount of KRW 64,515,248, including the existing business entity’s obligations, and its delay damages. (2) The Defendant’s assertion that the Defendant did not succeed to the obligation to pay for the goods of the existing business entity, and the Defendant is liable to pay only KRW 3,310,416,00 after the opening of the business on October 2018.
B. Article 42(1) of the Commercial Act provides that “The person who continues to use the trade name is liable to repay debts arising from the transferor’s business.”
The liability of a transferee of a business who employs a trade name is to protect the external trust of creditors who have deducted the opportunity to enforce his/her claim by means of a transfer of business without succession of obligation as above.