Plaintiff (Law Firm Jeongsung, Attorneys Yang Jong-tae et al., Counsel for the plaintiff-appellant)

Antenna Tech Co., Ltd. (Attorneys Cho Young-sik et al., Counsel for the defendant-appellant)

October 24, 2007

Suwon District Court Decision 2006Gadan23510 decided Nov. 24, 2006

1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

1. Purport of claim

The defendant shall pay to the plaintiff 63,859,189 won with 6% interest per annum from August 6, 2005 to May 2, 2006 and 20% interest per annum from the next day to the day of full payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

1. Basic facts

The following facts are not disputed between the parties or may be acknowledged by comprehensively considering the following facts: Gap evidence of 1 to 6, Eul evidence of 1, Eul evidence of 5, Eul evidence of 6-1 to 8, Eul evidence of 7, Eul evidence of 8-1, 2, Eul evidence of 10 and the testimony of non-party 1 of the first instance trial witness of non-party 1.

(a) Transactions between the original and the defendant and the payment for the amount of goods;

(1) From February 2, 2004 to September 2, 2004, the Plaintiff manufactured and supplied gold-related goods for mobile communications using gold-type supplied by the future test company (hereinafter “ future test”) and supplied them. Until October of the same year, the Plaintiff was not paid KRW 132,69,189 out of the price of the goods.

(2) On October 25, 2004, the Defendant changed the trade name to the Defendant (main antenna text), sent a notice of the fact that the contact address and address were changed to the Defendant’s contact address and address by facsimile, and sent the sender to the Plaintiff by facsimile along with the Defendant’s business registration certificate on October 26, 2004.

(3) On October 26, 2004, the Plaintiff drafted a new agreement on the trading of goods with the Defendant, and produced gold-related goods for mobile communications using gold-type offered by the first future test from around that time to July 31, 2005, and supplied them to the Defendant.

By August 5, 2005, the Defendant paid 68,840,000 won out of the unpaid amount of KRW 132,69,189, as well as the amount of goods supplied directly by the Plaintiff.

(b) Transfer or acquisition of assets, etc. between the future test and the defendant;

(1) The future test was originally owned by ① 3,00,00, 364, 101, 101, 192, 200, 502, 200, 502, 190,000,000, 190,000,000,000,000,000,000,0000,000,000,0000,000,0000,0000,0000,0000,0000,0000,0000,0000,000,0000,0000,0000,0000,0000,000,000,000,000,000,000,000,000,000,000,000,00,00.

(2) On October 5, 2004, the Defendant was established for the purpose of manufacturing and selling the antenna for mobile communications, and Nonparty 2, its representative director, was a director of the future test (the appointment of director of March 29, 2004).

(3) From October 15, 2004, the Defendant: (a) from the future test, around October 15, 2004, from among the tangible assets of the future test, the Defendant took over all of the patent rights and exclusive licenses related to the manufacture of the antenna, and took over all of the patent rights related to the manufacture of the antenna among the intangible assets of the future test; and (b) the obligation to the financial institutions of the future test. In addition, the Defendant succeeded to all of the employees of the future test in charge of the manufacture and sale of the antenna, and all of the employees of the future test in charge of the sale in the future test, and took over from the future test to the customers including the Plaintiff.

(4) The Defendant did not take over the building of a research institute building and a dormitory for employees of the research institute owned by the future tech. At the time of October 15, 2004, the auction procedure upon the application of the mortgagee was already in progress with respect to the employee dormitory building, and the above research institute building was also decided to commence the auction procedure on November 1, 2004.

(5) On October 18, 2004, the Defendant manufactured the antenna using machinery and apparatus, etc. that was taken over from the future test at this place on a lease of the 193 Bupyeong-gu, Seocheon-gu, Seocheon-gu, 193 Taecheon-gu, 402 and 503, Seocheon-gu, 2004. On the other hand, the Defendant leased and used the said research institute (168.48mm2 among the above 101m2 and 101m2 among the above 101m2) from the future test, and was awarded a successful bid in the auction procedure for the building of the research institute on August 24, 2005.

2. Determination of the parties' arguments

A. The plaintiff and the defendant's assertion

(1) The plaintiff's assertion

(A) The Defendant comprehensively succeeded to the rights and obligations of the future test, including the future test assets related to the manufacture of antennas from the future test, as well as the labor relations of relevant employees, and succeeded to the business relationship with the transaction partners including the Plaintiff, etc., by comprehensively taking over the business of the test in advance related to the manufacture of antennas, and comprehensively succeeding to the business relationship with the transaction partners including the Plaintiff.

(B) Furthermore, the Defendant’s act of notifying the Defendant that the trade name was changed to the customer of the future test including the Plaintiff in the future test is the same as that of the future test, and the Defendant actively advertised that the Defendant comprehensively succeeded to all the rights and obligations of the future test at least as the same as that of the future test, and the Defendant’s act of notifying the Defendant that the Defendant was not responsible for the remaining product payment obligations of the future test is also contrary to the doctrine of advice.

(C) Therefore, the Defendant is liable to pay the Plaintiff the remaining price of the future test (=132,69,189,189), and the damages for delay (68,840,000 won).

(2) The defendant's assertion

(A) The Defendant did not take over the building of the future tech, which is a major asset of the future tech from the initial future tech, and did not succeed to the lessee status of the building used for the future tech, and used the new building as a manufacturing factory, etc., on a selective basis, assigned or taken over only part of the assets and liabilities of the future tech, barring special circumstances, such as accepting a resume and an application for support from workers who wish to join the Defendant among the employees of the future tech, and not comprehensively succeed to the employment relationship, and did not take over the future tech’s commodity price liability. In this regard, the Defendant received the assets and liabilities from the future tech, and filed a purchase tax invoice with the competent tax office to pay the price of the assets and liabilities issued by the future tech, and applied for early refund of the value-added tax, and the head of the competent tax office comprehensively determined that the Defendant could not take over the future tech’s tax office’s business from among the acquisition of the Defendant’s assets and liabilities by transfer of the value-added tax law.

(B) The documents sent by the Defendant to the Plaintiff by facsimile on October 25, 2004 and October 26, 2004, which the Defendant was in the custody of the Plaintiff from among the assets that the Defendant acquired from the future test, and the Defendant did not need to change the customer. Thus, the documents issued the Defendant’s business registration certificate to prevent mistake by providing the Plaintiff with information on the necessary matters to be stated in the tax invoice to be issued in connection with a new transaction after October 25, 2004, are only recorded and sent by recording the trade name, business registration number, contact information for business consultation.

(C) Furthermore, on October 30, 2004, the Plaintiff prepared a new transaction agreement with the Defendant and submitted to the Defendant a certificate of security for KRW 31,340,00,00, which was paid by the Defendant, as well as a performance assurance to the effect that the content of the agreement is faithfully fulfilled. In light of this process, the Plaintiff was aware that the Defendant did not succeed to the goods payment obligation of the Plaintiff of the future Tech from the future tech, and that the Defendant’s acceptance of part of the assets and liabilities of the future Tech does not constitute a transfer of business under the Commercial Act.

(D) The Plaintiff, upon entering into a new transaction agreement with the Defendant, demanded the repayment of the payment of the existing price for the goods supplied by the Plaintiff to another customer on condition of continuous transaction. The Defendant, without any choice, has paid 68,200,000 won out of the price for the goods unpaid in the future, on July 30, 2005, on behalf of the Plaintiff. In addition, the Defendant received from the Plaintiff the payment of the part of the Plaintiff’s future claim against the Plaintiff, the Defendant received the payment from the Plaintiff, and without any objection to the assignment of the claim. Accordingly, it can be said that the Defendant recognized both the Plaintiff and the future test that the Defendant did not accept the above goods payment obligation against the Plaintiff in the future test.

B. Determination

(1) First, we examine whether the transfer of business can be made between the Defendant and the future test, as alleged by the Plaintiff.

The issue of whether a false business transfer has been made shall not be determined by what kind of business property has been transferred, but by which the previous business organization has been maintained and the organization can function as a whole or an important part of the business organization. Thus, even if business facilities have been transferred without reserving a part of the business property, it is recognized as a transfer of business in light of the social concept that the previous organization has been maintained even if the business facilities have been transferred without reserving a part of the business property, it shall be deemed as a transfer of business. However, even if the entire business property has been transferred after dissolution of the organization, it shall not be deemed as a transfer of business (see Supreme Court Decision 2002Da23826, May 30, 2003, etc.).

On October 1, 2004, a company established around October 1, 2004, which was established by the Defendant, at the time of the Defendant’s transfer of business from the future test, is identical to its business purpose (the manufacture and sale of antennas). The Defendant acquired all inventory assets, raw materials, and patent rights and exclusive licenses necessary for the manufacture of antennas from the future test. Meanwhile, the Defendant did not take over the buildings and dormitories of the future test institute owned by the future test institute, but it appears that it was due to the fact that the Defendant had already been in progress or was imminent in auction. The dual research institute leased them from the future test and used them, and the Defendant was awarded a successful bid in the auction procedure, and the Defendant transferred most of them to the Defendant after departure from the future test, and succeeded to the form that was composed of the Plaintiff and its employees, and it seems that the Defendant continued to take over the same part of the company’s sales without taking over the company’s physical equipment, including the Plaintiff, without taking over the company’s sales from the future test.

(2) Furthermore, we examine whether the Defendant, as a transferee of the business, is liable for the repayment of the purchase-price obligations against the Plaintiff of the future test, which is the transferor of the business.

On October 25, 2004, after the Defendant acquired antenna manufacture and sales business from the future test, the Defendant changed its trade name to the Defendant (main antenna text) in the future test, and sent documents to the effect that contact address and address have been changed. On October 26, 2004 on the following day, the Defendant sent back the sender by facsimile with the Defendant’s business registration certificate attached to the documents indicating “(main antenna text) antenna text”, and thereafter, the Defendant notified the Plaintiff that it would have continued to perform the future transaction of the Plaintiff on behalf of the Plaintiff at least 68,840,00 won on behalf of the Plaintiff, and the Defendant did not accept the Plaintiff’s claim that it would have continued to perform the future transaction under the same conditions as the Plaintiff’s future transaction terms and conditions as the Plaintiff’s future claim that it would have been identical to the Plaintiff’s future transaction terms and conditions.

In light of the above circumstances, even if the defendant did not take over the above goods payment obligation of the future test, the defendant is liable for the repayment of the above goods payment obligation to the plaintiff of the future test, which is a business transferor, by analogical application of Article 44 of the Commercial Act. The defendant entered into a new goods transaction agreement with the plaintiff on October 26, 2004 and received goods from the plaintiff by July 31, 2005. The above goods transaction agreement between the plaintiff and the defendant was made in full view of the purport of the whole arguments in the above goods transaction agreement between the plaintiff and the defendant, and the defendant paid 31,30,00,000 won as advance payment, and received promissory notes from the plaintiff as security, and it is difficult for the plaintiff to accept the part of the above goods payment as a transfer payment without any future bond, and the fact that the defendant accepted the above part of the transfer payment as the transfer of the right of the defendant's future bond.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 63,859,189 won (i.e., 132,69,189 won - 68,840,000 won) and damages for delay calculated at the rate of 6% per annum under the Commercial Act from August 6, 2005 to May 2, 2006 on the record that the delivery date of a copy of the complaint of this case is obvious from August 6, 2005, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment. Thus, the plaintiff's claim of this case is justified for this reason, and the judgment of the court of first instance is just, and the defendant's appeal disputing this conclusion is dismissed. It is so decided as per Disposition.

Judges Park Dong-dong (Presiding Judge)