1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Basic Facts

A. The Plaintiff sold the pipe materials from January 12, 2014 to May 31, 2016 to D operating a sarras pipe manufacturing business with the mutual name “C” in Namyang-si, Namyang-si.

B. On June 27, 2016, the Plaintiff filed an application for a payment order claiming for the payment of the unpaid goods 41,385,964 won and damages for delay with respect to D, and on June 27, 2016, the Suwon District Court rendered a payment order ordering D to pay the Plaintiff KRW 41,385,964 and the damages for delay (No. 2016 tea 1104) with respect to D, and the said payment order was finalized on July 16, 2016.

C. On August 9, 2016, the Plaintiff filed an application for compulsory execution with the District Court based on the original copy of the above payment order, and the enforcement officer affiliated with the District Court was not able to execute the seizure of corporeal movables at the said C’s workplace on the ground that the said workplace was not D.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 and 3, and the purport of the entire argument of the plaintiff's claim is that the defendant, as a partner of D, acquired the debt of D to the plaintiff or continues to use a trade name similar to "C" while taking over the whole business of D from D as a partner of D, and therefore, it is liable to pay the debt of the price for the goods to the plaintiff of D pursuant to Article 42 (1) of the Commercial Act.

Judgment

The Defendant is the same birth of D, and the Defendant opened a Stere pipeline manufacturer, which is the same type of business as C, under the trade name “E” from July 20, 2016. At the time of execution of the seizure of corporeal movables, the Defendant alleged that corporeal movables, such as work machinery, stere pipe, etc. inside the “C” factory, were not owned D, but owned by stere or the Defendant, is not in dispute between the parties, or in accordance with the purport of the entries and arguments in the evidence No. 2, but in the process, it is recognized that the above fact of recognition alone took over the entire business of “C” from “C” from “C,” and in the process, D’s business.