판례를 중심으로 본 營業讓渡의 개념 및 판단기준

Abstract

This paper discusses the concepts and criteria of the transfer of business assets, of which the Korean Commercial Code does not provide the clear meanings, by reviewing several Supreme Court‘s decisions. In general, business transfer agreement enables the seller to transfer her rights and obligations to the buyer by exchange with the full committed payments. The Supreme Court has repeated as a criterion in the business sales that business property should be transferred as a whole, because individual sale of assets cannot achieve the statutory goal of business property transfer. In another words, the transfer of a business should be treated as a 'Transfer of a business as a going concern' when there is selling or otherwise transferring a business, or part of a business. In reality, one of the most important and difficult things is how to hold business identity intact. To accomplish the purpose of maintenance of business identity, in a transfer of business, human and material resources should be transferred functionally as a whole. Particularly, if the auction process is involved in the sale of business assets, business debt will not be delegated properly. In case of using the auction process, business transfer may be exploited to avoid business debt. To solve these problematic situations, the Court needs to be more cautious in dealing with actual cases that involve the auction process. The agreement to “Sale of All Assets Outside the Course of Business” must express explicitly that it is the business transfer agreement or it can be regarded implicitly as the business transfer agreement. Therefore, the court has currently required that the identity of business by delivering human and material resources as a whole should be maintained and business transfer agreement must exist explicitly or implicitly.