In a case where Article 42(1) of the Commercial Act applies mutatis mutandis to a company established by investment in business continuously using the trade name, whether Article 45 of the Commercial Act is naturally applied mutatis mutandis (affirmative)

Article 42(1) of the Commercial Act provides that where a transferee of a business continues to use a transferor's trade name, a transferee shall also be liable for the obligations of a third party arising from the business of the transferor, and Article 45 of the Commercial Act provides that where a transferee of a business is liable for repayment pursuant to Article 42(1) of the Commercial Act, the obligations of the transferor to the third party shall expire two years after the date of the transfer of business. Thus, where Article 42(1) of the Commercial Act applies mutatis mutandis to the case where the provisions of Article 42(1) of the Commercial Act, which Article 45 of the Commercial Act applies mutatis mutandis

Articles 42(1) and 45 of the Commercial Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Domin, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff (Law Firm Namsan, Attorneys Jeon Dong-jin et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Cho Jae-ho, Counsel for the defendant-appellant)

Seoul High Court Decision 2008Na73870 decided May 13, 2009

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

We examine the grounds of appeal.

Article 42 (1) of the Commercial Act provides that where a transferee continues to use a transferor's trade name, a transferee shall also be liable for the obligations of a third party arising from the business of the transferor, and Article 45 of the Commercial Act provides that where a transferee is liable for repayment pursuant to Article 42 (1) of the Commercial Act, the obligations of the transferor to the third party shall be extinguished after the lapse of two years from the date of the transfer of the business. Thus, where Article 42 (1) of the Commercial Act applies mutatis mutandis to cases where the provisions of Article 42 (1) of the Commercial Act apply mutatis mutandis to cases where a transferee of the business (see Supreme Court Decisions 95Da12231, Aug. 22, 1995; 96Da13767, Jul. 9, 196) by investing the business and continuing to use the trade name (see Supreme Court Decisions 96Da13767, Aug

The lower court revoked the first instance judgment and dismissed the Plaintiff’s claim on the ground that the instant claim related to the Defendant’s business was extinguished by Article 45 of the Commercial Act, on the ground that the instant lawsuit was filed on January 25, 2008, since two or more years have elapsed since the end of August 2004, which can be seen as the date of the business transfer, of the ○○ Commercial Act, and the establishment of the ○○ Commercial Act was initiated on January 25, 2008.

In light of the above legal principles and records, the above measures of the court below are just and there are no errors in the misapprehension of legal principles as to Article 45 of the Commercial Act, or in violation of the principle of good faith and equity, thereby affecting the conclusion of the judgment.

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 Jeon Soo-ahn (Presiding Justice)