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1. The Defendants jointly and severally liable to the Plaintiff KRW 24,663,775 and Defendant C with respect thereto from March 30, 2017, and Defendant D with respect thereto.
Reasons
1. Basic facts
A. From January 2007 to September 30, 2016, Defendant C operated the wholesale and retail shop for construction, such as plastic containers, in the trade name of “F” (hereinafter “F”).
B. The Plaintiff, a company engaged in the sales of tampers and sealed materials (including de-icing agents for construction), supplied goods, such as racks, to F, operated by Defendant C, by September 21, 2016. As of September 21, 2016, the amount of the Plaintiff’s price for the goods unpaid to Defendant C is KRW 24,63,775.
C. Meanwhile, from November 18, 2016, Defendant D operates a wholesale and retail shop for construction, such as plastic containers (hereinafter “G”) with the trade name “G” at the same place as “F, which was operated by Defendant C, the husband, from November 18, 2016.
[Ground of recognition] Unsatisfy, Gap's entry of Gap's 1 to 13, 15 evidence (including branch numbers), the purport of the whole pleadings
2. Determination:
A. According to the above facts finding as to the claim against Defendant C, Defendant C is obligated to pay to the Plaintiff the unpaid amount of KRW 24,663,775 and delay damages therefor.
B. Determination as to Defendant D’s claim 1) According to Article 42(1) of the Commercial Act, where a transferee continues to use a transferor’s trade name, the transferee is also liable to repay a third party’s claim arising from the transferor’s business if the transferor continues to use the transferor’s trade name. Whether a transfer of business is deemed to exist should be determined depending on whether the transferee can be deemed to continue to engage in the same business activity as that of the transferor after the transferee transferred a functional asset as the source of profit organized organically (see, e.g., Supreme Court Decision 2005Da602, Jul. 22, 2005). Business transfer is not necessarily subject to an explicit contract between the transferor and the transferee of business, and is also possible under an implied contract (see, e.g., Supreme Court Decision 2007Da17123, Jan. 15, 2009).