商號續用 營業讓受人의 辨濟責任에 관한 상법 제42조의 解釋原理 ㅡ 判例의 外觀法理的 해석방법의 한계 및 機能論 관점에서 再構成 ㅡ

Abstract

Korean Commercial Code(hereinafter ‘KCC’) §42 prescribes the liability of the purchase of business to the third parties for the business liability of the transferor in continuation of trade name under the old company and also with the possibility of exclusion of liability. The model law of this provision was Japanese Commercial Code §26(corresponding to the current §17) which was enacted referring to the German Commercial Code(HGB) §25. The clarification of the guiding principle of this system makes trouble. Most domestic scholars try to interpret the legal reasoning as typed appearance liability theory, mixing theories of appearance and liability fund, and the company continuation theory. However, none of the traditional theories is able to provide complete satisfaction. In any case, the legal liability of the acquisition in accordance with §42 is to be accepted as lex lata without bending means of the theories out. This paper develops the logic related to the KCC §42, and sets its sights on the basis of the functional analysis concerning the clause. The main purpose of KCC §42 is to make working as a mandatory norm of interest adjustment among transferor, transferee, and creditors, as well as to protect creditors in relation to transfers of business. By providing the transferee with a choice between liability assumption and disclaimer, KCC §42 is expected for the transferee to act as the key coordinator of interests by reflecting the possible liability cost to the contract negotiations between transferor and transferee, and as a result to achieve the goal of debtor protection. From the viewpoint of these normative functions of KCC §42, this paper supports the Supreme Court’s decisions which have shown to extend KCC §42 for the cases related to the continuation of business sign as well as trade name, investing the business in kind, and so on. Meanwhile, this paper also expresses criticism about the Supreme Court’s decision which requires the good faith of creditors.