(영문) 광주지방법원 2017.12.14.선고 2017가합52158 판결

With respect to the Plaintiff KRW 557,095,982 and KRW 489,843,152 among them, the Defendant shall pay to the Plaintiff 20% interest per annum from December 31, 2011 to the day of full payment, 67,252,830 interest per annum from the day following the day of delivery of a copy of the instant complaint to the day of full payment.

Reasons

1. Basic facts

A. Busan Solomon Savings Bank (hereinafter referred to as the " Solomon Savings Bank") lent KRW 1,50,000,000 to E under the joint and several guarantee of corporation B (hereinafter referred to as the "B"), C and D (hereinafter referred to as the "loan of this case").

B. (1) On December 30, 201, Busan Solomon Savings Bank transferred the instant loan claim to Sck Investment Loan Co., Ltd. (hereinafter “Sck Investment Loan”).

(2) On January 3, 2014, Sck Investment Loan filed an application for payment order against E, B, C, and D with the Seoul Southern District Court No. 2014Guj575 (hereinafter “instant payment order”) to seek payment of the interest and interest on the instant loan amounting to KRW 557,095,982 and KRW 489,843,152 from December 31, 2011 to the date of full payment. The above payment order was finalized on February 7, 2014.

C. (1) On May 27, 2016, Sck Investment Loan re-transfered the instant loan claim to the Plaintiff. On July 18, 2016, Busan Solomon Savings Bank and Sck Investment Loan notified E of the transfer of each credit.

(2) On September 29, 2016, the Plaintiff was granted the succeeding execution clause on the instant payment order. D. (1) B was established on May 19, 2008 for the purpose of wedding hall business, restaurant business, etc., and was engaged in wedding hall business with the head office located in the F in the netcheon City.

After that, B was dissolved pursuant to Article 520-2(1) of the Commercial Act on December 2, 2013, and the liquidation was completed pursuant to Article 520-2(4) of the Commercial Act on December 2, 2016.(2) The defendant is a stock company established on December 12, 2008 for the purpose of wedding business, restaurant business, etc., and is engaged in wedding business with the head office in the F in the netcheon City.

[Ground of recognition] The facts without dispute, Gap evidence 3 to Gap evidence 7 (including each number; hereinafter the same shall apply), the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff and B establish the defendant with the same form and content substantially for the purpose of evading obligations. Thus, the defendant's assertion of legal personality separate from the loan of this case against the principle of good faith or abuse of legal personality.

Therefore, the defendant is obligated to perform the debt B following the payment order of this case to the plaintiff.

B. The defendant and the defendant are not established for the purpose of evading the debt of B, but are separate companies with the defendant, and the defendant is not obligated to perform the debt of B according to the payment order of this case to the plaintiff.

Judgment

A. If an existing company establishes a new company substantially identical in its form and content to evade debts, the establishment of the new company constitutes abuse of the company system in order to achieve the unlawful purpose of evading debts of the existing company. In such a case, claiming 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, a creditor of the existing company may also claim the performance of debts against any of the above two companies. Here, whether a new company is incorporated with the intent to evade debts of the existing company should be determined by comprehensively taking into account various circumstances, such as management status or asset status at the time of closure of the existing company, the time of establishment of the new company, the existence and degree of assets useful for the new company, the existence of assets transferred from the existing company to the new company, and whether reasonable remuneration has been paid in the event of assets transferred from the existing company to the new company (see, e.g., Supreme Court Decision 2009Da7327, Jan. 14, 2010).

B. (1) According to the overall purport of evidence No. 3-1 and No. 3-2 and the entire pleadings, the defendant, at the same place as B, has a principal office and conducts a wedding hall business at the place of the principal office, and the representative of B and the defendant can recognize the same facts.

(2) However, in light of the following circumstances in which evidence No. 9, No. 20, and No. 1 through No. 5 can be seen by comprehensively taking into account the overall purport of the pleadings, the above-mentioned facts alone are difficult to deem that B established the Defendant for the purpose of evading its obligation, and there is no other evidence to acknowledge otherwise.

(A) On June 7, 2006, E entered into a real estate trust agreement with the K non-real estate trust company (hereinafter referred to as the "K non-real estate trust agreement") and completed the registration of ownership transfer for reasons of trust in the future of the K non-real estate trust on the same day.

(B) From January 1, 2009 to December 31, 2011, the Defendant concluded a lease agreement with the terms that the instant real estate was leased at KRW 20,000,000, monthly rent of KRW 12,000,00 from the KF real estate trust, and from January 1, 2009, the Defendant operated a wedding business on the instant real estate from January 1, 2009.

(C) The K non-real estate trust decided to sell the instant real estate through a public sale procedure under the instant trust agreement. The Defendant purchased the instant real estate from the K non-real estate trust on June 25, 2012 in the public sale procedure, and completed the registration of ownership transfer on August 21, 2012.

(D) Meanwhile, the Defendant received loans from net agricultural cooperatives for most of the sales proceeds of the instant real estate.

C. Therefore, we cannot accept the Plaintiff’s above assertion based on the premise that the Defendant was established for the purpose of evading B’s debt.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.