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Reasons
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(영문) 전주지방법원군산지원 2019.01.24 2016가단10631
물품대금
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1. The Defendants jointly and severally liable to the Plaintiff KRW 27,777,00 and Defendant B with respect thereto from March 12, 2017, and Defendant C with respect thereto.

Reasons

1. Basic facts

A. From January 2007 to September 30, 2016, Defendant B operated the wholesale and retail shop for construction, such as plastic containers (hereinafter “E”) with the trade name “E” from Dolsan City.

B. The Plaintiff is a company that manufactures and sells solid containers, etc., which is operated by Defendant B, and KRW 9,721,250 on May 31, 2016, and the same year.

6. 30.3,960,000 won, and the same year.

7,815,500 won, and the same year;

8. 31.6,039,000 won, and the same year;

9. A total of KRW 31,537,000, total of KRW 4,001,250 had been supplied.

Defendant B paid KRW 3,760,000 out of the price of the goods as of May 31, 2016, and the amount of the unpaid goods to Defendant B is KRW 27,777,00.

C. Meanwhile, from November 18, 2016, Defendant C operates the wholesale and retail shop for construction (hereinafter “F”) with the trade name “F” at the same place as “F”, which was operated by Defendant B, the husband, from November 18, 2016.

[Ground of recognition] Unsatisfy, Gap evidence Nos. 1, 4, 15, 21, each of the evidences Nos. 1, 4, 15, 21, and the purport of the whole pleadings

2. Determination:

A. According to the facts of the above recognition as to the claim against Defendant B, Defendant B is obligated to pay the Plaintiff the unpaid amount of KRW 27,777,00,00 and the delay damages therefor.

B. According to Article 42(1) of the Commercial Act, where a transferee continues to use the transferor’s trade name, the transferee is also liable to repay a third party’s claim arising from the transferor’s business. Here, whether a transfer of business is deemed to exist should be determined depending on whether the transferee can be deemed to continue to engage in the same business activity as that of the transferor upon the transferee’s transfer of functional properties as the source of income organized organically (see, e.g., Supreme Court Decision 2005Da602, Jul. 22, 2005). The transfer of business is an explicit contract between the parties to the transfer of business.

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