beta
Text
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. On January 9, 2015, the Plaintiff entered into a guarantee agreement with B, with the effect that B, while obtaining a loan from the Jeju Jeju High Bank branch, the amount of the loan KRW 50 million is KRW 47.5 million, and the term of the guarantee was until January 8, 2016 (this was extended by January 9, 2017).
B. B obtained a loan of KRW 50 million from the Industrial Bank of Korea as security on January 12, 2015.
C. However, on December 12, 2016, B lost the benefit of time for the above loan obligation. On January 9, 2017, the Plaintiff subrogated to the Bank of Korea for KRW 47,783,109 pursuant to the above guarantee agreement.
The defendant worked as an employee of B, but closed B, thereby running the business of D.
[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 5, purport of the whole pleadings
2. The plaintiff's assertion that the defendant takes over the business of C operated by B and uses the trade name of D. Thus, the defendant is liable to pay the plaintiff's indemnity liability to B as a transferee of business who belongs to the trade name under Article 42 (1) of the Commercial Act.
3. Determination as to whether a business transfer under Article 42(1) of the Commercial Act exists should be made based on whether the transferee can be deemed to continue the same business activity as the transferor had been engaged in after the transferee transferred functional properties as the source of revenue organized organically.
(see, e.g., Supreme Court Decision 2010Da35138, Sept. 30, 2010). We examine the following: (a) The fact that the Defendant was an employee of C, operated by B; and (b) the Defendant was operating an enterprise similar to C, as seen earlier.
However, the following circumstances, which are acknowledged by the evidence Nos. 3 through 8, the results of the inquiry of the fact to the National Pension Service of this Court, and the purport of the entire pleadings, i.e., B operated.