영업양도에 수반하는 근로계약 인수 시 이미 발생한 채무불이행 또는 불법행위에 기한 손해배상채권이 이전하는지 여부 – 대법원 2020. 12. 10. 선고 2020다245958 판결에 대한 평석 –

‘Transfer of contract’ is a comprehensive transfer of one party's contract to a third party. It is widely used in the transaction world because it simplifies legal relations by transferring all rights and obligations arising from the contractual relationship simultaneously, beyond transferring individual debts and liabilities. Still, there is no explicit provision regarding it in the Civil Code, so its legal rules and effects are left to the interpretation of theories and precedents. The Supreme Court's Decision 2020 DA 245958, dated December 10, 2020, is the first Supreme Court decision to address the effects of the transfer of employment contracts accompanying a business transfer. The case was a complex case to apply the general law of contract acquisition previously set forth by the Supreme Court because (i) the acquisition of an employment contract was made in connection with a business transfer under commercial law, (ii) the acquisition of an ongoing contract rather than a contract for a one-time payment was at issue, and (iii) the transfer of liability for damages due in default or tort rather than a contractual liability was at issue. This paper examines the issue of the succession of the working relationship accompanying the business transfer and the scope of the liabilities transferred in the contractual acquisition. It also examines the validity and limitations of the subject judgment. The Supreme Court ruled that when an employment contract is transferred in connection with a business transfer, the liability for damages resulting from a default or tort committed by the employee before the business transfer is transferred to the acquirer. This conclusion is entirely reasonable in light of the content of the contractual arrangements agreed to by the parties and the interpretation of the parties' intentions in assuming the contract. The Supreme Court's ruling is also significant as it is the first to squarely confirm that the counterparty requirement of Article 450(1) of the Civil Code is not required to acquire a contract. However, it is somewhat disappointing that the Supreme Court's judgment (i) relied on the law generally applicable to contracts for a one-time payment in a situation where a continuing contract is at issue and (ii) omitted to review the previous Supreme Court judgment on which the original judgment relied, even though the original judgment did not omit a judgment on the issue, as a result of a misunderstanding that the original judgment was guilty of omitting a judgment.