2016년 상법총칙, 상행위법 주요판례의 분석

Among those decisions rendered by the Korean Supreme Court in 2016, focuses this paper on commercial transaction cases based upon the Korean Commercial Code. Six cases covered in this paper came from various fields of commercial law practice. (1) 2013Da84162 (Dec. 10, 2015) allowed creditors of a company to cancel business transfer under the civil law jurisprudence of fraudulent conveyance (art. 406 of the Korean Civil Code). This is the first case dealing with the applicability of art. 406 of the Korean Civil Code to business transfer. It is, however, not clear that a corporate division based upon art. 530-2, another form of business rearrangement, would also be subject to fraudulent conveyance jurisprudence. (2) 2014Da9212 (Aug. 24, 2016) denied the extension of successor liability provision, which is applicable to business transferee, onto leasee of the business. The Supreme Court righteously pointed to the difference between business transfer agreement and lease contract: while the title of assets devoted to the current business is transferred in the former, no change of ownership occurs in the latter. The logic of the Court is based upon the principle that statutory liability provisions should be cautiously extended. (3) 2013Da76635 (Jan. 28, 2016) dealt with the usurpation of registered trade name. Following the death of the farther, who had established a conglomerate, third son separated some of corporate group member companies to set up independent group. The first son, having made another corporate group afterwards, wanted to use similar trade name already registered by his brother (third son above). The attempt by the first son was failed by this Decision stating that the use of registered trade name would infringe upon the invested right to trade name. (4) 2014Da37552 (May 12, 2016) is about the statute of limitation applicable to commercial transaction. The Supreme Court confirmed that the statute of limitation would individually applied for guarantor (distinctive from guarantee). (5) 2015Da233098 (Jul. 14, 2016) explored the scope of liability stipulated in art. 57(1) of the Korean Commercial Code: under the provision parties to a commercial contract shall be jointly and severally liable for debts resulted from the contract. In this case, the Supreme Court decided that a joint-construction contract shall make a contract under the 57(1) of the Korean Commercial Code. (6) 2014Da200763, 200770 (Jun. 10, 2016) denied the reduction of liquidation damage, under the rationale that both parties agreed upon the estimated damage when entering into the contract. It is questionable, however, that the logic may be justified in case where the damaged party also contributed to the extension of the damage.