1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. The following facts do not conflict between the parties, or each entry in Gap evidence 1 and Eul evidence 2 may be admitted by taking into account the whole purport of the pleadings:

The plaintiff is a wholesaler of various food materials, and the defendant completed business registration with the trade name of "B" and operated the wholesale and retail business of food materials.

B. On October 27, 2015, the Plaintiff filed a claim for the payment of the amount of KRW 5,405,778 out of the amount of food materials supplied to D by the Plaintiff as the Suwon District Court 2015Gau21561, Sungnam-gu, Sungnam-si, Gwangju District Court, for the payment of unpaid amount of KRW 5,405,778 from among the amount of food materials supplied by the Plaintiff. Upon the Plaintiff’s above claim, the said court made a decision on performance recommendation (hereinafter “decision on performance recommendation of the instant case”) to order D to pay the unpaid amount of KRW 5,405,778 on January 8, 2016 and the delay damages therefrom (hereinafter “decision on performance recommendation”). The decision on performance recommendation of the instant case became final and conclusive on January 29, 2016 due to the Plaintiff’s failure to raise objection.

(hereinafter referred to as “the above claims established by the decision on performance recommendation with respect to the instant product” is the claim for the price of the instant product.

On the other hand, D died on March 1, 2016.

2. Summary of the parties' arguments;

A. Since the Plaintiff’s Defendant takes over the business of “C” from D and runs the wholesale and retail business of food materials, which are the same type of business as “C”, using similar trade names at the same place of business, the Plaintiff is liable to repay the Plaintiff’s claim for the price of the instant goods, as a transferee of business who belongs to the trade name pursuant to Article 42(1) of the Commercial Act.

B. The Defendant entered into a partnership agreement with the Defendant D, closed the business of “C,” which was previously operated by D, and started the wholesale and retail business of food materials using the trade name “B,” and did not take over the business of “C,” under Article 42(1) of the Commercial Act.