Korea Technology Finance Corporation (Law Firm Gyeongsan, Attorneys Sung Jae-in et al., Counsel for the defendant-appellant)

Defendant (Attorney Jeong Jin-won, Counsel for defendant-appellant)

January 18, 2019

1. The plaintiff's primary claim and the conjunctive claim are all dismissed.

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

○ The primary purport of the claim is to pay to the Plaintiff 168,206,281 won and 168,206,064 won among them, 12% per annum from March 8, 2013 to June 5, 2014; 20% per annum from the next day to the delivery date of a copy of the complaint of this case; and 15% per annum from the next day to the date of complete payment.

○ Preliminary Claim: Revocation of a business transfer and takeover agreement between the defendant and the non-party 1 on November 14, 2012; and the defendant pays to the plaintiff 168,206,281 won and 168,206,064 won with 12% per annum from March 8, 2013 to June 5, 2014; 20% per annum from the next day to the delivery date of the copy of the complaint of this case; and 15% per annum from the next day to the day of full payment.

1. Basic facts

A. On September 24, 2004, the Plaintiff concluded a credit guarantee contract with each of the credit guarantee principal of KRW 85,000,000 with respect to each of the loans to Nonparty 1’s foreign exchange banks, which is ○○○○○○○, with each of the credit guarantee principal of KRW 85,00,000 (the change to KRW 80,000) and ② March 12, 2007.

B. On November 25, 2012, Nonparty 1 lost the benefit of time due to natural body, and the Plaintiff subrogated to the foreign exchange bank totaling KRW 168,868,854 on March 8, 2013.

C. On October 10, 2014, the Plaintiff filed a lawsuit against Nonparty 2 who was Nonparty 1 and joint guarantor, the Seoul Central District Court 2013Da5192578, and the said court rendered a favorable judgment against the Plaintiff on October 10, 2014 that “Nonindicted 1 and Nonparty 2 shall jointly and severally pay to the Plaintiff 168,206,206,064 won and 168,206,064 won with 12% per annum from March 8, 2013 to June 5, 2014, and 20% per annum from the next day to the day of full payment.” The said judgment became final and conclusive around that time (hereinafter referred to as “instant claim and debt based on the final judgment”).

D. On November 12, 2012, the Defendant completed the business registration with the trade name “○○○○○○○”, and on November 14, 2012, the Defendant filed a report on the succession to the status of ○○○○○○○○○○○○○○ on the part of the Defendant.

[Ground of recognition] The fact that there is no dispute, entry of Gap evidence 1-1, 2, and 2-2, and the result of an order to submit documents to the Kimpo-market by this court, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

The plaintiff asserts as follows.

1) In the first place, the Defendant is taking over the business of the ○○○○○ operated by Nonparty 1, and thus, pursuant to Article 42(1) of the Commercial Act, the Defendant is jointly and severally liable to pay the Plaintiff’s indemnity liability to Nonparty 1 as the transferee who belongs to the trade name.

2) Preliminaryly, the transfer and takeover contract between the defendant and the non-party 1 is deemed null and void as a false declaration of agreement. Thus, the above transfer and takeover contract is revoked, and the defendant must pay the plaintiff the indemnity amount.

B. Defendant’s assertion

The Defendant asserted to the effect that even if the Defendant acquired a license for the high-pressure gas sales business from Nonparty 1 and did not enter into a contract for the transfer and takeover of the business, the Plaintiff’s claim for indemnity of this case was not a claim attributable to the transferee of the business.

3. Determination

A. Judgment on the main claim

1) Whether a transfer and takeover contract is concluded

In light of the following circumstances, it is reasonable to view that the Defendant entered into a contract with Nonparty 1 on the transfer or acquisition of the right to operate a liquefied petroleum gas sales business with the same trade name from “○○○○○○○○○○○○○○○○○○○○○○○○○○”, which was operated by Nonparty 1, the Defendant appears to be using existing-related facilities by using the place of business: ④ Nonparty 1 is the mother father of the Defendant; Nonparty 2, the Defendant’s senior mother, was the only employee of the existing place of business; ⑤ Nonparty 1 was registered as the Defendant’s employee; ⑤ Nonparty 1 was the purchase office and sales office of each place of business; and ⑤ Nonparty 1 was the same as the purchase office and sales office of each place of business.

2) Whether the business transferee is liable for the mutual speed

However, it is difficult to view that a third party’s claim, which is liable to a transferee at the time of the transfer of business, should have occurred even if the due date for the payment of the debt does not have to arrived at the time of the transfer of business, and that the transferee should be held liable for the debt incurred in the near future because it is considered as the time of the transfer of business (see Supreme Court Decision 2004Da35656, Dec. 9, 2004).

According to the above facts and above 3. A.1, the Plaintiff’s claim for indemnity of this case occurred on March 8, 2013 when the Plaintiff subrogated to the foreign exchange bank for the obligation of loans. Since the business transfer and takeover contract between the Defendant and Nonparty 1 was concluded on November 14, 2012, the Plaintiff’s claim for indemnity of this case was not yet occurred at the time of the above business transfer and takeover contract. Thus, it is difficult to view that the Defendant, as the transferor, is liable for the repayment of Nonparty 1’s obligation for indemnity to the Plaintiff.

Therefore, the plaintiff's main claim is without merit.

B. Determination on the conjunctive claim

As seen earlier, the Plaintiff asserts that the above business transfer and takeover contract between the Defendant and Nonparty 1 is null and void as a juristic act by a false conspiracy concluded to avoid exercising the Plaintiff’s right to indemnity. However, in order to establish a false conspiracy, it is not consistent with the intention of the declaration of intention and the agreement with the other party as to the inconsistency, and there is no other evidence to acknowledge it.

Therefore, without any need to examine the remainder of the plaintiff's conjunctive claim.

4. Conclusion

Therefore, the plaintiff's main claim and conjunctive claim of this case are all dismissed as it is without merit. It is so decided as per Disposition.

Judges Kim Jin-ju