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

[2] In a case where Gap newly acquired the right to use the gas station building of the gas station, which is the most important business property in the gas station operated by Eul corporation, by entering into an independent lease contract with the owner of the building who is not Eul corporation and the lessor, and operated the gas station under the trade name as when Eul corporation operated, Eul corporation's creditor of loans requested the payment of the principal and interest on the loan by asking for the transferee's liability for mutual affiliation against Eul, the case affirming the court below's rejection of the claim for justice on the ground that Gap and Eul cannot be deemed to have entered into the business transfer contract for the gas station business

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

[1] Supreme Court Decision 96Da8826 delivered on April 14, 1998 (Gong1998Sang, 1315), Supreme Court Decision 2005Da602 delivered on July 22, 2005 (Gong2005Ha, 1400), Supreme Court Decision 2007Da89722 Delivered on April 11, 2008 (Gong2008Sang, 675)

Plaintiff (Law Firm Man, Attorneys Go Jong-ho et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Dong-won, Counsel for defendant-appellant)

Seoul High Court Decision 201Na6681 decided February 10, 2012

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

The grounds of appeal are examined.

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 as an organic combination of tangible and intangible property and facts with economic value, which functions as a source of profit, and the source of profit that systematically combines as such, becomes an object of transaction, such as one goods. Thus, whether a transfer of business can be viewed as a source of profit should be determined depending on whether the transferee continues to engage in the same business as the transferor after the transferee transferred a functional asset as an organicly organized source of profit (see Supreme Court Decision 2005Da602, July 22, 2005, etc.).

According to the reasoning of the judgment below, based on its adopted evidence, the court below acknowledged the circumstance that the defendant did not take over the right to use the gas station building of this case, which is the most important business property of the gas station of this case from the passenger source of this case, from the above building owner and the lessor, through an independent lease contract with the non-party 1, who is the lessor. The court below rejected the plaintiff's claim of this case against the defendant for the payment of principal and interest on the gas station of this case under the premise that the defendant continued to operate the gas station of this case with the same trade name as when the plaintiff was operated by the passenger source of the corporation, and the contract did not lead to the fact that the defendant cannot be deemed to have received the transfer of the gas station of this case, which is a functional property as the source of profit formed organically from the passenger source of this case, as a source of profit, maintaining its identity.

In light of the above legal principles and the records, the above measures of the court below are just, and there is no violation of the rules of evidence and misapprehension of legal principles as to the transfer of business, as alleged in the

In addition, the court below rejected the plaintiff's claim on the premise that the defendant took over the business of the gas station of this case from the passenger source of this case. The court below's rejection of the plaintiff's claim on the premise that the non-party 1 and the non-party 2's representative director is the non-party 2's creditor, the defendant's transfer of the gas station operated by the non-party 2 from the non-party 2 around the time when the plaintiff operated the gas station of this case, and the defendant acquired the organization of the gas station of this case other than the physical facilities of this case. Thus, it did not err in the misapprehension of judgment, incomplete hearing, or mistake of facts, etc. as alleged in the grounds of appeal

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 Kim Yong-deok-soo (Presiding Justice)