[1] Where an existing company establishes a newly incorporated company substantially identical in its form and content for the purpose of evading obligations, whether creditors of the existing company may claim for the performance of obligations against both the existing company (affirmative)

[2] The case holding that it is not permissible to deny liability of a newly established company, the form and content of which are substantially identical for the purpose of evading obligations of an existing company, on the ground that it is a separate legal entity from the existing company, because it is against the good faith and trust or abuse the legal entity

[1] If an existing company establishes a new company substantially identical in the form and content of the existing company for the purpose of evading its obligations, the establishment of the new company is abused the company system for the purpose of evading its obligations. Thus, the assertion that the above two companies have a separate legal personality against the creditors of the existing company cannot be permitted in light of the principle of trust and good faith. Thus, the creditors of the existing company may demand the performance of obligations against either of the above two companies.

[2] The case holding that it is not permissible to deny liability of a newly established company, the form and content of which are substantially identical to that of an existing company, on the ground that it is a separate legal entity from the existing company, because it is against the good faith and trust or abuse its legal personality.

[1] Article 2 of the Civil Act, Article 171 (1) of the Commercial Act / [2] Article 2 of the Civil Act, Article 171 (1) of the Commercial Act

[1] Supreme Court Decision 87Da1671 delivered on November 22, 1988 (Gong1989, 17) (Gong1989, 1467) Supreme Court Decision 93Da44531 delivered on September 12, 1995 (Gong1995Sang, 2090) (Gong2001Sang, 485) Supreme Court Decision 97Da21604 delivered on January 19, 2001 (Gong2001Sang, 485)

1. A public official corporation and two others (Law Firm Gyeong & Yang, Attorneys Jin-sik et al., Counsel for the plaintiff-appellant)

Top Media Bill Co., Ltd. (Attorney Lee Yong-hoon, Counsel for the defendant-appellant)

Seoul High Court Decision 2001Na55903 delivered on October 23, 2002

All appeals are dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

If an existing company establishes a new company substantially identical in the form and content of the existing company for the purpose of evading obligations, the establishment of the new company is abused the company system for the purpose of unlawful achievement of the purpose of evading obligations of the existing company. Thus, the assertion that the above two companies have a separate legal personality against the creditors of the existing company is not permissible in light of the principle of trust and good faith. Thus, the creditors of the existing company may demand the performance of obligations against either of the above two companies (see Supreme Court Decisions 93Da44531, May 12, 1995; 97Da21604, Jan. 19, 201).

According to the reasoning of the judgment of the court below, the court below accepted part of the judgment of the court of first instance and recognized the facts of the judgment. The defendant company is identical or similar to the name, symbol, business purpose, address, and overseas suspension of business with the non-party 1 company (hereinafter referred to as "non-party 1 company"), the major foreign photographs or majority of the shareholders of the non-party 1 company were the non-party 1's representative director as the controlling shareholder of the non-party 1 company, and the non-party 1 was the non-party 1's employee. The defendant company advertised the non-party 1 and the non-party 2, the representative director of the defendant company, were engaged in activities in the position of the non-party 1 company, and the non-party 1 and the non-party 2, the representative director of the non-party 1 company, were also entitled to the non-party 1 company's act as chairperson, and it seems that the non-party 1 company still has the same legal personality as the non-party 1 company's new company's corporate personality.

According to the reasoning of the judgment below and the records, although it is somewhat inappropriate to find facts, the court below recognized that the non-party 1 company transferred interior construction business to the defendant on October 20, 199 (attached Table 1). Since Article 7 [Attachment 1] of the Enforcement Decree of the Framework Act on the Construction Industry was amended by Presidential Decree No. 16512 on August 6, 199, the name of the "master construction business" among the previous specialized construction business was changed to "indoor construction business", it seems that the non-party 1 company did not transfer its indoor construction business license to the defendant company, and it is clear that the non-party 1 company did not transfer its construction business to the non-party 1's company's indoor construction business (No. 36) and the former Framework Act on the Construction Industry (amended by Act No. 640 of Jan. 26, 2002, the same shall apply to the construction business owner's transfer of construction business to the non-party 1 company as one of the non-party 1 company's new construction business.

Therefore, all appeals are 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 on the bench.

Justices Kim Yong-dam (Presiding Justice)