[1] The meaning and standard of determining the transfer of business

[2] In a case where a transferee of a business who does not continue to use the transferor's trade name notifies the transferor's obligee of the intent to assume an obligation individually, whether such transferee bears the responsibility for the repayment of obligation (affirmative)

[1] The business under Article 42(1) of the Commercial Act refers to a functional asset as an organic integration organized for a certain business purpose. The term "functional asset as an organic integration" refers to a combination of tangible and intangible assets and factual relations with economic value, which function as the source of profit, and the functional asset as the source of profit that is systematically combined as such, becomes an object of transaction like one goods. Thus, the issue of whether a business transfer is deemed to have been made should be determined depending on whether the transferee continues to conduct the same business activity as that of the transferor after being transferred a functional asset as the source of profit that is systematically organized by the transferee.

[2] The legal principles of Article 44 of the Commercial Act recognizing the responsibility for repayment, in a case where a transferee of a business who does not continue to use the transferor's trade name, advertises the transferor to take over an obligation due to the transferor's business, is not limited to a case where the transferor expresses his/her intent to take over the transferor's obligation by the advertisement, but also applied to a case where the transferor expresses his/her intent by the method of individually notifying the transferor's creditor, and

[1] Article 42 (1) of the Commercial Act / [2] Article 44 of the Commercial Act

[1] Supreme Court Decision 2005Da602 decided Jul. 22, 2005 (Gong2005Ha, 1400)

Plaintiff

Antenna Tech Co., Ltd. (Attorney Cho Young-sik, Counsel for the defendant-appellant)

Seoul High Court Decision 2006Na117646 decided Nov. 14, 2007

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. As to the transfer of business

Article 42(1) of the Commercial Act refers to a functional asset as an organic integration organized for a certain business purpose. The term "functional asset as an organic integration" refers to a functional asset which serves as the source of revenue by systematically combining tangible and intangible properties and facts with economic value, and the source of revenue that systematically combines as such, serves as the source of revenue, and the source of revenue becomes an object of transaction like one goods. Thus, whether a business transfer exists shall be determined depending on whether the transferee continues to engage in the business activity such as the transferor after the transferee transferred a functional asset as the source of revenue that is systematically organized (see Supreme Court Decision 2005Da602 delivered on July 22, 2005, etc.).

In light of the above legal principles and records, the court below's finding that the defendant acquired the business related to this part by acquiring the business organization composed of physical facilities and human organizations for the manufacture and sale of the antenna of the future Tech corporation around October 15, 2004, based on each facts found by the employment evidence, is just and acceptable. The facts alleged in the ground of appeal and the result of the tax authority's disposition related to the transfer of the business of this case cannot be viewed differently.

This part of the judgment of the court below is not erroneous in the misconception of facts or misapprehension of legal principles.

2. As to the responsibility of a transferee of business

The legal principles of Article 44 of the Commercial Act, which recognizes the responsibility for repayment, are not limited to cases where the transferee expresses his/her intent to accept the transferor's obligation by the advertisement, and it also applies to cases where the transferor's creditor is expressed his/her intent by individually notifying the transferor's creditor, and the above obligation repayment liability arises in relation to the creditor.

In light of the above legal principles and the records, the court below recognized that the defendant is liable for the repayment of the goods price liability of the plaintiff of the above future test, the transferor of business, as well as the goods price of KRW 132,69,189,189, based on the following facts: (a) the defendant, immediately after the defendant acquired the business from the above future test, was changed from the above future test to the defendant's trade name "the main antenna" and sent the plaintiff by facsimile documents to the effect that contact address and address were changed; and (b) the sender sent the sender by facsimile along with the defendant's business registration certificate; and (c) the defendant thereafter, while making a transaction with the plaintiff, made a repayment of KRW 68,840,00 to the plaintiff as well as the goods price liability of KRW 132,69,189 to the plaintiff.

As cited in the grounds of appeal, there is no objective similarity between the defendant and the above future test, or there are circumstances where the defendant and the above future test at the time of the instant transfer of business between the defendant and the above future test are excluded from the subject of succession. However, such circumstance alone does not constitute a ground to deny the defendant's obligation to pay the goods based on Article 44 of the Commercial Act, and it is not sufficient to recognize that the plaintiff was aware of the circumstances that the goods price obligation as stated in the above transfer of business was excluded from the subject of succession. The other arguments cited in the grounds of appeal are nothing more than the purport of dispute over the fact-finding of the court below, which is the fact-finding court.

This part of the judgment of the court below is not erroneous in the misconception of facts or misapprehension of legal principles.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cha Han-sung (Presiding Justice)