(영문) 인천지방법원 2015.09.22 2014가단52857

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(영문) 인천지방법원 2015.09.22 2014가단52857

매매대금

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1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Comprehensively taking account of the overall purport of the pleadings as to the testimony of each part of Gap evidence 7 and 8, Eul’s evidence, witness C, and D, it can be recognized that Eul operated a comprehensive food marina in the trade name of “Fmarate” (hereinafter “the instant marina”) and transferred the business body, such as the facilities related to the marina, to the defendant around March 18, 2014.

2. On January 7, 2014, the Plaintiff asserted that the Plaintiff sold marina facilities and goods to C in KRW 67 million. The Defendant agreed to use the facilities, etc. sold by the Plaintiff as they were, and pay KRW 45 million to the Plaintiff, when acquiring the instant marina, as they were sold by C.

As a transferee of the business, the defendant is obligated to pay 67 million won or at least 45 million won of the agreed amount to the plaintiff as the transferee of the business.

3. Determination

A. As to the assertion of liability for the takeover of business, Article 42(1) of the Commercial Act requires the “use of trade name” on the premise of the responsibility of the transferee of business. However, there is no evidence to acknowledge that the Defendant continued to use the trade name “FE” in the process of acquiring the instant marina from C (it is only possible for the Defendant to recognize the fact that the Defendant changed the trade name of the instant marina to the “GEM” even according to the statement on the evidence No. 8 submitted by the Plaintiff). Accordingly, it is difficult to accept the Plaintiff’s assertion on a different premise.

B. It is insufficient to acknowledge that the Defendant agreed to pay to the Plaintiff KRW 45 million as the price for the goods, such as facilities, solely with the entries in the evidence Nos. 1 through 5, 9, and 10, and the witness C’s testimony as to the assertion of agreed amount. The Plaintiff’s assertion on this part is difficult to accept, since there is no evidence to acknowledge otherwise

4. Therefore, the plaintiff's claim is dismissed. It is so decided as per Disposition.

참조조문

-상법 제42조 제1항

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