[1] Whether Article 42(1) of the Commercial Act provides that the transferee of a business shall succeed to the status of a guarantor in relation to the transferor’s business funds (negative) / Whether a third party’s claim held by the transferee of a business pursuant to the above provision shall have occurred even at the time of the transfer of business (affirmative), and whether the transferee of a business shall be held liable for the claim that may occur in the near future at the time of the transfer of business,

[2] The scope of exercise of the original claim and the security right by subrogation of the person performing the obligation under Articles 481 and 482 of the Civil Code (=within the scope of the right to indemnity of the person performing the obligation)

[1] Article 42(1) of the Commercial Act provides that where a transferee continues to use a transferor's trade name, the transferor is still liable for the transferee's debt as a primary debtor and also the transferee is also liable for the debt of a third party arising from the transferor's business. However, it is difficult to deem that the above provision allows the transferee to succeed to the status of the guarantor with respect to the transferor's business funds, and even if the transferee does not need to reach the maturity date at the time of the transfer of business, the claim of a third party liable by the transferee pursuant to the above provision shall have occurred at the time of the transfer of business, and it shall not be deemed that the transferee is liable for the transferee's debt that will have arisen in

[2] Since subrogation by a third party or a co-debtor is a system for securing the validity of the right of indemnity, which has been acquired by the debtor or another co-debtor through the repayment of the principal obligation by the third party or a co-debtor, the scope of exercise of the principal obligation and the security right by subrogation is limited to the scope of the right of indemnity.

[1] Article 42(1) of the Commercial Act / [2] Articles 481 and 482 of the Civil Act

[1] Supreme Court Decision 2003Da51569 Decided February 13, 2004, Supreme Court Decision 2004Da35656 Decided December 9, 2004 / [2] Supreme Court Decision 98Da22451 Decided October 22, 199 (Gong199Ha, 2408), Supreme Court Decision 2009Da85861 Decided May 27, 2010 (Gong2010Ha, 1246)

Korea Technology Finance Corporation (Law Firm Gyeongsan, Attorneys Kim Jong-hwan et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Assistantwon, Attorneys Kim Jae-hoon et al., Counsel for the defendant-appellant)

Incheon District Court Decision 2019Na54934 Decided September 5, 2019

The judgment below is reversed, and the case is remanded to the Incheon District Court.

The grounds of appeal are examined.

1. The judgment of the court below

As to the Plaintiff’s claim for reimbursement, the lower court determined that the Defendant was not liable for the repayment of the Nonparty’s obligation to the Nonparty as the transferor, and dismissed the Plaintiff’s claim for reimbursement. (2) As to the claim for amount of subrogation, the Plaintiff has a legitimate interest in repaying the Nonparty’s obligation as a guarantor, and thus, acquired the legal subrogation right to subrogate the foreign exchange bank, which is the Plaintiff’s legal subrogation right against the Nonparty. Since the said claim for amount of subrogation was already transferred to the Nonparty because the foreign exchange bank, which is the previous creditor, was already transferred to the Nonparty at the time of the transfer of the business, the Defendant was jointly and severally liable for the amount of subrogation as the transferee belonging to the trade name.

2. Judgment of the Supreme Court

A. Article 42(1) of the Commercial Act provides that where a transferee continues to use a transferor's trade name, the transferor is still liable for the transferee's debt as a primary debtor and also the transferee is also liable for the debt of a third party arising from the transferor's business. However, it is difficult to deem that the above provision allows the transferee to succeed to the status of the guarantor with respect to the transferor's business funds. Even if the transferee does not need to have the maturity period at the time of the transfer of business, the claim of a third party liable under the above provision shall have occurred until the time of the transfer of business, and it shall not be deemed that the transferee is liable for the debt that will have arisen in the near future at the time of the transfer of business (see Supreme Court Decisions 2003Da51569, Feb. 13, 2004; 2004Da356566, Dec. 9, 2004, etc.).

Meanwhile, subrogation under Articles 481 and 482 of the Civil Act is a system for securing the validity of a right to indemnity that a third party or a joint obligor has against a debtor or another joint obligor by discharging the principal obligation. Thus, the scope of the exercise of the original claim and security right by subrogation is limited to the scope of the right to indemnity (see, e.g., Supreme Court Decisions 98Da22451, Oct. 22, 1999; 2009Da85861, May 27, 2010).

B. According to the legal principles as seen earlier, insofar as the Plaintiff did not have the right to indemnity against the Defendant as determined by the lower court with respect to the claim for indemnity of this case, subrogation recognized for securing the validity of the right to indemnity cannot be allowed. Therefore, the Plaintiff cannot exercise in subrogation the original claim against the Defendant of the foreign exchange bank.

Therefore, the judgment of the court below which accepted the plaintiff's subrogation claim is erroneous in the misapprehension of the legal principles as to the liability of the transferee who belongs to the claimant's subrogation and trade name, which affected the conclusion of the judgment. The ground of appeal

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Ki-taik (Presiding Justice)