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1. The instant lawsuit shall be dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. The Plaintiff’s assertion was received from E who operated wholesale and retail business, such as Triang, in the name of Jongno-gu Seoul Metropolitan Government “D”, and was asked to lend business funds to E on October 20, 2010, Nov. 30, 2010, and December 30, 2010, the Plaintiff determined the annual interest rate of KRW 115,000,000 as 18%.
The defendant, who is a child of E, has arranged the “D” business place operated by E in the form of the business closure, and operates wholesale and retail business, such as the same trade name and the same telephone number, in the same place of business as that of the existing business place of E, while using the same phone number as it is.
Since the defendant constitutes a transferee of business who continues to use the trade name of “D” operated by “D,” the defendant is liable to pay the plaintiff’s loan claim 110,000,000 won and its delay damages against “D” as the transferee of business.
2. We examine ex officio the determination.
Article 42 (1) of the Commercial Act provides that where a transferee continues to use a transferor's trade name, a transferee shall also be liable for the obligations of a third party arising from the business of the transferor, and Article 45 of the Commercial Act provides that where a transferee is liable for the repayment under Article 42 (1) of the Commercial Act, the obligations of the transferor to the third party shall be extinguished after the lapse of two years after the date of the transfer of the business, the duration of the liability of the transferor shall be limited.
(2) In full view of the following facts: (a) evidence Nos. 7 and Nos. 1 and 4 of the evidence Nos. 1 and 1 and 4; and (b) the fact-finding results with respect to F of the instant court, in full view of the purport of the entire pleadings, E engaged in wholesale and retail business, such as in the name of “D” at Jongno-gu Seoul Store C (hereinafter “instant store”); and (c) closed the business on March 9, 201; and (d) the Defendant thereafter concluded a contract with G Co., Ltd. on its behalf on March 17, 2011 after the said store was newly leased.