상호를 속용하는 영업양수인의 책임범위 - 대상판결 : 대법원 2020. 2. 6. 선고 2019다270217 판결 -

The commercial law does not specifically stipulate the concept of business transfer and mutual use, so the requirements for recognizing them are left to the interpretation of case law. According to the results of the survey of small business owners by the Ministry of SMEs and Startups, as of 2022, there are a total of 4,124,202 small business owners registered in Korea, including 3,623,850 individual businesses and 500,352 corporate businesses. These small business owners frequently open and close businesses. In some cases, they start by installing all the facilities anew when opening a business, but they also try to reduce the risk of starting a business by using the existing business’s reputation and facilities as they are. Such efforts are expressed in the form of key money, and when we look at the survey results showing that about 50% of small business owners doing business in major commercial districts nationwide have paid key money when starting a business, we can see that the scale is not negligible. Key money may not be a problem that ends with simply paying it. The key money consists of the floor key money, facility key money, and business key money. If the previous business owner's employment is also inherited, it will be considered a transfer of business under the Commercial Act. In particular, considering that the size of business loans for individual business owners reached approximately KRW 1,113 trillion as of the end of March 2024, there may be cases where entrepreneurs who continue to use the previous business owner's business name for stable business establishment incur unexpected losses. In other words, those who wish to take over the existing business and start a new business as their own may be at risk of having to repay the previous business owner's business loan instead of the original intention as the transferee of the business transfer using the business name under the Commercial Act. In this regard, the issue of responsibility of the transferee of business using the business name by small business owners, especially the transferee of business using the business name, is actually occurring frequently. Although our Commercial Act exempts small business owners from the application of the provisions on managers, business names, commercial ledgers, and commercial registration (Article 9 of the Commercial Act), other provisions apply to all merchants, including small business owners. Ultimately, since the Commercial Act is applied in cases where the trade name is used in the frequent transfer of business between small business owners, it is very important to properly understand the legal principles in order to prevent unexpected losses. Therefore, this article will examine the Supreme Court precedents on the responsibility of the transferee of the trade name in the transfer of business of small business owners in this situation, and we will clarify the legal relationship and provide specific legal principles.