營業讓渡人의 營業上 債權者에 대한 營業讓渡人과 營業讓受人의 辨濟責任 負擔의 法律關係

Abstract

The Korean Commercial Code (hereinafter ‘KCC’) Article 42, Article 44, and Article 45 stipulate that the transferee of a business shall be responsible to pay the debt arising from the business of the transferor. There has been much controversy about the validity of these provisions and the basis of legal principles. However, there is relatively less controversy on the subject of the detailed legal relationship over the repayment liability to creditors of the transferor in the case of business transfer without assumption of debt. This paper deals with the subject of the latter. Assuming that the above legislation, which is rare in other countries except for Japan and Germany, has normative legitimacy as a whole, this paper tries a theory building to search for some judicial basis related to the above topics as follows. (1) The main purposes of these provisions are to perform the function as the norm adjusting the interests among the transferor, transferee, and creditor as well as the protection of creditors. These provisions are also expected to play the role of the buffering of interests of the parties involved. In allocating the repayment liability, these provisions are more concerned with who owns and is engaged in the business at the time of claim. (2) This paper takes the position that the nature of the reimbursement liability of the transferor and transferee in accordance with the KCC Article 42 or Article 44 is the so-called ‘genuine type of joint-and-several-liability’, otherwise the conventional theory which composes the rationale based on ‘the quasi type of joint-and-several-liability’. In this case, the legal status of transferee is similar to ‘the cumulative assumption of obligation’. (3) If the transferee is liable for any obligation of the transferor in accordance with the provisions of Article 42, paragraph 1 or Article 44, the liability of the transferor in respect of the third person shall cease to exist after the lapse of two years subsequent to the transfer of the business or to an advertisement(KCC Article 45). Consequently the transferee remains as the only person responsible for the reimbursement. In this case, the legal status of transferee occurs similar to ‘the exempting assumption of obligation’. (4) The legal characteristics of the two years of transitional duration stipulated in the KCC Article 45 is an exclusion period which performs the effects of liquidation of the transferor by making the transferor free from the debt relatively quickly, not an extinctive prescription. (5) This paper presents a comment that the filing of a lawsuit within the two years is not required to be regarded as a legitimate exercise of rights.