(영문) 서울남부지방법원 2016.07.14 2015가단48980

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(영문) 서울남부지방법원 2016.07.14 2015가단48980

대여금

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1. The plaintiff's claim is dismissed.

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

Reasons

1. Basic facts

A. On November 6, 2014, the Plaintiff entered into an agreement on supply of alcoholic beverages, facilities, etc. with C, which operate a restaurant (hereinafter “instant restaurant”) under the trade name of “B” (hereinafter “instant restaurant”).

B. On the other hand, around October 20, 2014, the previous Plaintiff lent KRW 121,000,000,000 as the business funds necessary for the restaurant business of this case and the amount of KRW 121,000,000 as the air conditioners (hereinafter “instant loan”) to C.

C. The name of the instant restaurant operator was changed to the Defendant on December 9, 2014, and C filed an application for commencement of rehabilitation procedures with the Seoul Central District Court on December 30, 2014.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 4, purport of whole pleadings

2. Judgment on the plaintiff's assertion

A. The plaintiff's assertion is that the defendant takes over the restaurant of this case from C and succeeds to its name, facilities, and employees and operates it as it is. The defendant is obligated to pay the principal and interest of the loan of this case borne by C, which is due to the operation of the restaurant of this case, as a transferee of business who belongs to its trade name pursuant to Article 42 (1) of the Commercial Act.

B. The Defendant transferred the instant restaurant from C solely on the basis of the aforementioned evidence and the statement of Gap evidence No. 5-9

It is insufficient to recognize that the restaurant business of this case was engaged in because of the use of either name or trade name, and there is no other evidence to acknowledge this otherwise. Rather, comprehensively taking account of the overall purport of pleadings as to the entries in the evidence Nos. 5-2 through 8, No. 1 and 2, the fact that the name of the restaurant of this case was changed to C again on August 20, 2015, and the fact that the credit card sales proceeds from the business of the restaurant of this case has been managed by C can only be recognized, and the plaintiff's assertion is without merit.

3. In conclusion, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

참조조문

-상법 제42조 제1항

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