In cases where a transferee of a business takes over an obligation due to the business of a transferor of a business pursuant to Article 44 of the Commercial Act, whether the obligee’s claim against the transferee of the business naturally depends on the disposal of the obligee’s claim against the transferor (negative), and whether the obligee’s claim shall meet the requirements for setting up against the obligor

If a transferee of a business does not use the transferor's trade name continuously, if the transferee advertises that the transferor will take over the obligation arising from the business of the transferor (Article 44 of the Commercial Act). In this case, the obligation arising from the business of the transferor and the obligation under Article 44 of the Commercial Act of the transferee of a business are obligations with the same economic purpose, which overlap with each other, the other's obligation ceases to exist if one of the other's obligation is extinguished due to repayment, etc. However, although the obligation against the transferor of a business and the transferee of a business are in a so-called in a so-called in a non-joint and several relationship, the other obligation cannot be deemed to be extinguished if the other obligation against the transferee of the business are extinguished due to repayment, etc. However, the obligation against the transferor of a business is a separate claim with different legal causes and cannot be deemed to be naturally dependent on the disposal of the obligation against the transferee of the business. Therefore, even if the obligee transferred

Article 44 of the Commercial Act, Article 450 of the Civil Act

Plaintiff (Law Firm Chang, Attorneys Park Young-ok et al., Counsel for the plaintiff-appellant)

Defendant Co., Ltd. (Law Firm, Attorneys Lee Dong-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2007Na13406 decided February 19, 2009

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. If the transferee does not use the transferor's trade name continuously, and if the transferor advertises that the transferee will take over the obligation arising from the business of the transferor, the transferee is also liable (Article 44 of the Commercial Act). In this case, with respect to the obligation arising from the business of the transferor and the obligation arising from Article 44 of the Commercial Act of the transferee as well as the obligation arising from the business of the transferor, which overlaps with each other, one of the other's obligations ceases to exist if one of the other's obligations is repaid, etc., but the other's obligation is extinguished if one of the other's obligations overlap with the other. However, the obligee's claim against the transferor and the transferee against the transferor cannot be deemed to be naturally subordinate to the disposal of the claim against the transferor due to the nature of a separate claim different from the other's legal cause. Therefore, it cannot be concluded that the obligee's claim against the transferor is transferred to a third party as a matter of course solely on the ground that the obligee transferred

The court below reversed the judgment of the court of first instance and dismissed the plaintiff's claim, including the extended part at the court below, on the ground that the non-party 2 corporation, which transferred the claim against the non-party 1 corporation to the plaintiff as a creditor due to the business of the non-party 1 corporation, did not prove that the defendant who acquired the above business of the non-party 1 corporation, transferred the claim against the non-party 1 corporation to

In light of the above legal principles and records, the judgment of the court below is just and there is no error of law as alleged in the grounds of appeal.

2. The remaining grounds of appeal are with merit to the court below on a different premise, or cannot be accepted as it criticizes the court below's fact-finding without pointing out the violation of specific logical and empirical rules or violation of empirical rules.

3. Therefore, the appeal is 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 Jeon Soo-ahn (Presiding Justice)