[1] Whether the business transferee's liability for mutual continuity is established where the period of mutual continuity is short-term (affirmative)

[2] The case holding that in a case where Gap et al. worked as an instructor at the private teaching institute Eul operated by Eul and retired, but Eul transferred all the rights and duties concerning the above private teaching institute business to Byung Co., Ltd., and Byung transferred the above business to Byung Co., Ltd., and Eul et al. demanded Eul et al. to pay Byung's retirement pay payment obligation against Byung Co., Ltd., the case holding that the fixed company bears the duty of retirement pay payment obligation to Gap et al.

[1] In light of the provisions of Article 42 of the Commercial Code and the purport of the mutual-speed liability, a transferee of business shall be held liable for the mutual-speed liability as long as he continues to use the transferor's trade name, i.e., the transferor's trade name, and there is no provision on the mutual-speed period necessary for establishing the liability. Thus, even if the period of mutual-speed is short, it does not hinder

[2] In a case where Gap et al. worked as an instructor at the private teaching institute Eul operated by Eul and retired, but Eul transferred all the rights and duties concerning the private teaching institute business it operated to Byung Co., Ltd., and Byung transferred the above business to Jung Co., Ltd., and Byung et al. claimed against Byung Co., Ltd. for the performance of the obligation to pay retirement allowances owed by Byung Co., Ltd., the case holding that since Byung continued to operate the business with the same name it used by Byung Co., Ltd., it is liable for the payment of retirement allowances to Gap et al.

[1] Article 42 of the Commercial Act / [2] Article 42 of the Commercial Act

Plaintiff 1 and 13 others (Attorney Cho Tae-sik, Counsel for the plaintiff-appellant)

Education (Lisung Law LLC, Attorneys Park Jae-young et al., Counsel for the plaintiff-appellant)

Seoul Eastern District Court Decision 2012Gahap17392 decided August 30, 2013

June 11, 2014

1. Of the judgment of the first instance, the part against the defendant, including the plaintiffs' claims expanded in the trial, shall be modified as follows.

Defendant:

A. From November 27, 2007 to Plaintiff 14, as well as from 6,746,090 won;

B. 12,169,160 won to Plaintiff 1, 11, 16,430,820 won to Plaintiff 11, 20,79,040 won to Plaintiff 12, and 21,171,270 won to Plaintiff 13, and each of the above amounts from November 23, 2008;

C. Plaintiff 2: 10,622,490 won; 15,284,230 won to Plaintiff 3; 21,391,790 won to Plaintiff 4; 15,647,920 won to Plaintiff 5; 16,889,890 won to Plaintiff 6; 8,471,270 won to Plaintiff 7; 17,679,880 won to Plaintiff 8; 17,679,880 won to Plaintiff 9; 8,604,650 won to Plaintiff 10; and 18,238,830 won to Plaintiff 10; and each of the above money from November 22, 2009 to Plaintiff 6;

By October 18, 2010, 5% per annum and 20% per annum from the following day to the day of full payment.

2. All costs of the lawsuit shall be borne by the defendant.

3. The portion of payment of the amount under paragraph (1) may be provisionally executed.

1. Purport of claim

The same is as the monetary payment part of the Disposition No. 1 (the plaintiff extended the purport of the claim in the trial).

2. Purport of appeal

Of the judgment of the first instance, the part against the defendant shall be revoked, and all of the plaintiffs' claims corresponding to the revoked part shall be dismissed.

1. Basic facts

A. The Nonparty operated each of the ○○ ○○○○ Educational Institute in Songpa-gu Seoul (No. 1 omitted) and (No. 2 omitted) (hereinafter “each of the instant educational institutes”), and the Plaintiffs were to serve as an instructor at each of the instant educational institutes operated by the Nonparty from the relevant date indicated in the attached Table “Date of Admission” as indicated in the attached Table, and retired from the office on each of the relevant dates indicated in the “Date of Retirement.”

B. On November 12, 2009, the Nonparty entered into a contract on the transfer of all rights and obligations with respect to the driving school business, which it operates, to the sunken framework of the education of a stock company (hereinafter “education sunken framework”).

C. On April 20, 2012, the Plaintiffs filed a lawsuit claiming the payment of retirement allowances against the sunken framework of education, and the Seoul High Court 201Na71980 (Seoul High Court 201Na71980) rendered a judgment to the following purport (hereinafter “instant judgment”). The said judgment was final and conclusive upon dismissal of the final appeal on August 9, 2012.

The defendant's mold included in the main sentence of this Table shall be 6,746,090 won to 14, 6,746,090 won to 14, and 12,169,160 won to 11, 16,820 won to 12, and 20,079,040 won to 13, 13, 21,171,270 won to 208,68,681,67,986, 278, and each of the above amounts to 10,62,490 won to 208,68,681,97,986, 186, 280 won to 10,68,681,68,67,986, and 208.10 won to 2,68,681,67,681,67, and

D. On the other hand, on August 26, 2010, on the other hand, the sunken frame changed the location of the ○○○ ○○○○ Scup School located in Songpa-gu Seoul ( Address 1 omitted) to that of Songpa-gu Seoul ( Address 3 omitted), and submitted an application for registration of change of a driving school to the Gangseo-

E. On October 25, 201, the sunken framework of education submitted to the Gangseo-gu Seoul Metropolitan Office of Education a notice of change of the founder and operator of each of the instant driving institutes to the Defendant, and the Defendant continued to operate the business in the name of “○○○ Private Teaching Institutes” in each of the above driving institutes.

[Reasons for Recognition] The facts without dispute, Gap evidence 7-3 through 5, Gap evidence 10-10, and the fact-finding by the court of first instance to the Gangseo-gu Seoul Metropolitan Government Office of Education, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

Since the Defendant took over business from the sunken framework of education, and continued to operate business under the same name as “○○○ Entry and Training Institute,” the Defendant is responsible for performing the obligation to pay retirement benefits under the relevant judgment (hereinafter “instant retirement benefits”) to which the sunken framework bears for the Plaintiffs, in accordance with the mutual continuous liability prescribed in Article 42(1) of the Commercial Act.

B. Defendant’s assertion

1) Since the Plaintiffs were all set off before the takeover of the business of the sunken framework, the retirement allowance obligation for the Plaintiffs was incurred to the Nonparty, and did not succeed to the sunken framework of education. The Defendant did not acquire the business from the sunken framework of education.

2) The Defendant was limited to deceiving the short-term trade name until April 2012. The instant retirement allowance obligation cannot be deemed a debt arising from the business operation of the educational framework, which is the transferor. The physical scope of the Defendant’s repayment liability should be limited to the value of the transferred property. The educational framework has asserted that the Defendant was not liable for the obligation of the transferor in the instant lawsuit. This constitutes a case where the transferor and the transferee were notified of the fact that the transferor were not liable for the obligation of the transferor without delay. Accordingly, the Defendant’s mutual continued liability should not be established or limited.

3) Plaintiffs 1, 11, 12, and 13 retired on November 8, 2008, and Plaintiff 14 retired on November 12, 2007, respectively. As of November 5, 2012, the Plaintiffs’ retirement allowance claim as of November 5, 2012, the three-year extinctive prescription expired.

3. Determination

(a) Taking over the retirement allowance obligation of a sunken frame of education;

As seen earlier, since the sunken framework takes over all rights and obligations regarding the private teaching institute business from the Nonparty on November 12, 2009, it is deemed that the Nonparty’s retirement allowance obligation against the Plaintiffs was naturally taken over as the sunken framework of education (around November 12, 2009, the fact of transfer of the obligation for retirement benefits was recognized in the relevant judgment of this case that became final and conclusive).

B. Business takeover of the defendant

The reasoning of the judgment of the court in this part is as follows: (a) the reasoning of the judgment of the court in the first instance is as stated in the part of the first instance to 8 pages below 6, and therefore, (b) the same shall be cited in accordance with the main sentence of

C. Defendant’s cross-speed liability

Article 42(1) of the Commercial Act provides that “If the transferee continues to use the transferor’s trade name, the transferee shall also be liable for the debt of a third party due to the transferor’s business.” Meanwhile, Article 42(2) of the Commercial Act provides that “The latter part of Article 42(2) of the Commercial Act provides that “if the transferor and transferee have notified without delay that the transferor and transferee are not liable for the transferor’s debt, the said provision shall not apply to the third party notified.”

In general, Article 42(1) of the Commercial Act provides that, in cases where a business obligee’s credit to a debtor is most substantially secured by the debtor’s business property and the succession of an obligation is excluded from the process of real business transfer, the claims of the business obligee are separated from the business property and thus it would be prejudicial to the obligee, and thus, the same method of business transfer, such as loss of the opportunity to delay claims to the obligee. In other words, even if the business obligee did not succeed to an obligation, the use of the trade name is difficult to readily prove the fact of the business transfer, or in cases where it is difficult to prove the fact of failure to succeed to the obligation externally despite the business transfer is employed, it is interpreted that the provisions established to assume liability for repayment even to the assignee (see Supreme Court Decision 2007Da17123, 17130, Jan. 15, 2009, etc.).

With respect to the instant case, the health unit, the education unit, was liable for the payment of the instant retirement benefits to the Plaintiffs, the Defendant’s acquisition of business from the educational sunken framework on October 25, 201, and the Defendant’s continued operation of a private teaching institute using the name “○○○ Scuping Private Teaching Institutes,” which the Defendant used the educational sunken framework, is as seen earlier. Therefore, the Defendant is obliged to pay the instant retirement benefits to the Plaintiffs pursuant to Article 42(1) of the Commercial Act.

Meanwhile, in light of the foregoing provisions of the Commercial Act and the purport of mutual-speed liability, a transferee of a business takes the responsibility of mutual-speed liability as long as the transferor continues to use the transferor’s trade name, i.e., the transferor’s trade name, and there is no provision on the period of mutual-speed necessary to establish the liability. Thus, even if the period of mutual-speed is short, there is no difficulty in establishing the liability of mutual-speed liability of a transferee of a business even if the period of mutual-speed exists. Moreover, in this case, there is no evidence to prove that the Defendant used the trade name only until April 2012, and

In addition, the term "debt arising from the business of a transferor" under Article 42 (1) of the Commercial Act refers to a debt incurred in relation to business activities, and where the transferor is a stock company, an act committed in the name of a stock company with no private life in the name of the company is presumed to be an act for the business of the company once there is no counter-proof, and therefore, the obligation owed by the company is presumed to be an obligation arising from the business operations (see Supreme Court Decision 2000Da5862, Jun. 28, 2002). Accordingly, the obligation of the retirement allowance in this case is presumed to be an obligation arising from the business operations borne by the company due to the business takeover on or around November 12, 2009, and there is no counter-proof. Rather, according to the above facts, it is reasonable to view the educational framework as an obligation arising from the business operations of the private teaching institute in this case as it appears that the non-party takes over all the rights and obligations in relation to the private teaching institute business for

In addition, as the defendant asserts, there is no basis to limit the physical scope of the obligation of the transferee to the value of the acquired property.

Furthermore, according to the latter part of Article 42(2) of the Commercial Act, the transferee may be exempted from the cross-speed liability by notifying the transferor that all the transferor and the transferee are not liable for the transferor’s obligation without delay after the transfer of business. Thus, it is insufficient to recognize that the Defendant’s assertion that the target frame of education and the Defendant were immediately notified after October 25, 201, when the transfer of business was made, and there is no other evidence to acknowledge this otherwise.

Therefore, this part of the defendant's argument is without merit.

D. Whether the statute of limitations expired

The facts that Plaintiff 1, 11, 12, and 13 retired on November 8, 2008, and Plaintiff 14 on November 12, 2007 are as seen earlier, and it is evident that the instant lawsuit was filed on November 5, 2012. However, even if the claim established by a judgment falls under the short-term extinctive prescription, the extinctive prescription shall be ten years (Article 165(1) of the Civil Act). Since the instant claim was finalized by the relevant judgment, the extinctive prescription period is ten years.

Therefore, this part of the defendant's argument is without merit.

E. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff 14 the retirement pay of this case and its delay damages, ① to the plaintiff 6,746,090 won from November 27, 2007, ② to the plaintiff 12,169,160 won, ② to the plaintiff 11, KRW 16,430,820 won, KRW 20,040 to the plaintiff 12, and KRW 21,171,270 to the plaintiff 13 from November 23, 2008, ③ to the plaintiff 2, KRW 10,622,490, and KRW 15,284,230, KRW 291,790 to the plaintiff 4, and KRW 288,688,97888,688,9786,97, and KRW 280 to the plaintiff 2,300,000 to the plaintiff 15,281,9786,7886,

4. Conclusion

Therefore, the plaintiffs' claims against the defendant shall be accepted for all reasons, and the part of the judgment of the court of first instance, including the plaintiffs' claims expanded in the trial, shall be modified to order the payment of the above money, and it is so decided as per Disposition.

[Attachment] List: omitted

Judges Kim Jin-jin (Presiding Judge)