[1] The meaning of "a third party's claim due to the business of a transferor" under Article 42 (1) of the Commercial Code concerning the liability of a transferee of business who employs a trade name

[2] Where the transferor is a stock company, the burden of proving that the liabilities owed by the company are liabilities arising from the business

[1] 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 to repay a third party's claim arising from the transferor's business, and at this time, a debt arising from the transferor's business operation refers to a debt arising from the transferor's business activities.

[2] If the transferor is a stock company, an act done in the name of the stock company under the name of the company with no private life is presumed to be an act done for the business of the company once there is no counter-proof, and therefore, the obligation which the company bears is presumed to be an obligation arising from the business. However, if it is revealed by counter-proof that the obligation is not an obligation arising from the business, such presumption may be destroyed.

[1] Article 42(1) of the Commercial Act / [2] Articles 42, 46, and 47 of the Commercial Act; Article 261 of the Civil Procedure Act

[1] Supreme Court Decision 88Meu12100 Decided March 28, 1989 (Gong1989, 677) Supreme Court Decision 96Da8826 Decided April 14, 1998 (Gong1998Sang, 1315)/ [2] Supreme Court Decision 67Da2064 Decided October 31, 1967

Plaintiff

National concrete Industry Co., Ltd. (Law Firm Sejong, Attorneys Ha-chul et al., Counsel for defendant-appellant)

Seoul District Court Decision 99Na56276 delivered on December 21, 1999

The judgment of the court below is reversed, and the case is remanded to the Seoul District Court Panel Division.

First, we examine the ground of appeal No. 6.

According to the reasoning of the judgment below, the court below acknowledged each of the facts in its decision, and determined that the plaintiff is liable to pay the above promissory note debt and the joint and several surety debt of the Pakistan to the plaintiff, who is a legitimate holder of the Promissory note of this case issued by the Pakistan Co., Ltd. (hereinafter referred to as the "SP") on the part of the plaintiff's claim for the purchase and sale of land against the non-party, because it is jointly and severally guaranteed by the method that the PPP issued and delivered a lot of shares in its name to the plaintiff. Thus, the court below held that the defendant has a joint and several surety debt equivalent to the face value of the check, on the premise that the defendant takes over the business of the PP and continues to use his trade name, on the premise that all of the above bonds held by the plaintiff with the PPP are the bonds arising from the business of PPP, and the defendant, the transferee of the business belonging to the trade name of PPPP, is liable to the plaintiff

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 be liable for the obligations of a third party arising from the transferor's business, and at this time, a debt arising from the transferor's business operation refers to a debt arising from the transferor's business operation and a debt arising from the transferor's business operation (see Supreme Court Decision 88Meu12100, Mar. 28, 1989); where the transferor is a stock company, an act performed in the name of a stock company with no private life in the relationship between the transferor and the company is presumed to be an act for the business of the company unless there is any counter-proof (see Supreme Court Decision 67Da2064, Oct. 31, 1967). Accordingly, the obligation owed by the company is presumed to be a debt arising from the business operation, but it is revealed that the obligation was not a debt arising from the business operation by counter-proof.

However, according to the records, the non-party, who is the actual owner of the Promissory Notes and the joint and several liability obligations of the Promissory Notes against the plaintiff, shall purchase the gas station site, etc. from the plaintiff for personal operation of the gas station business regardless of the purpose of the business or the business of the PPP, and issue the Promissory Notes and the shares of the PPP using the name plate and the representative director's seal imprint for the payment of the price, and ultimately, the Promissory Notes and the shares of the PPP are the joint and several liability obligations under the underlying relationship (the plaintiff also received the Promissory Notes and the shares of the PPP in this case as security of the purchase price of the PPP, and it does not dispute actively that his claim is not related to the business of PPP.).

Thus, the plaintiff's above claim is nothing more than the business activity of the so-called so-called "subcons," and it cannot be viewed as a claim due to the transferor's business, and thus, it cannot be held liable for the performance against the transferor's business transferee. However, the judgment below which accepted the plaintiff's claim against the defendant is erroneous in the misapprehension of legal principles as to the liability of the business transferee for mutual affiliation.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jae-in (Presiding Justice)