영업양도에 관한 분야별 대법원 판례의 비판적 검토

Abstract

Supreme Court has established basic conception of business transfer based on Article 41 and 42 of the General provision of the Commercial Act (hereinafter, the "Conception under the General Provision"), which requires that the business to be operated by the tranferee after the transfer shall be equivalent with the business operated by the transferor before the transfer (hereinafter, the "Equivalence Requirement"). Supreme Court does not seem to distinguish the Conception under the General Provision with business transfer under other various laws, but the Conception under the General Provision can not be boilerplate. Article 374 of the Commercial Act provides that business transfer (hereinafter, the "Conception under the Corporate Law") shall be approved by the special resolution of the shareholders meeting. Supreme Court admits that the Conception under the Corporate Law includes the transfer of material operating asset which cannot suffice the Equivalence Requirement because business itself may not be transferred. Moreover, in case of the receipt of the transfer, whether the effect of the business transfer to the transferee is material or not overrides the Equivalence Requirement in discerning the applicability of the above article 374. Thus, the Conception under the Corporate Law got quite different from the Conception under the General Provision. When the business transfer (hereinafter, the "Conception under the Labor Law") matters in regard with lay-off, Supreme Court elaborated that, in case of business transfer which is intended to transfer assets and human resources comprehensively between the parties, the lay-off is illegal because the employment shall be comprehensively transferred along with the business transfer. This Conception under the Labor Law connotes the agreement between the parties on the transfer of human resources, which is not considered in the Conception under the General Provision. Tax Law and Fair Trade Law provides specific requirements for the business transfer, and Supreme Court developed each conception of the business transfer, which is necessarily different from the Conception under the General Provision as well as the Conception under the Corporate Law. In case personal information is transferred by the business transfer (hereinafter, the "Conception under the PIPA"), Personal Information Protection Act (PIPA) requires the subject of the personal information shall be informed. Nevertheless, if the business to be operated by the transferee fails to suffice the Equivalence Requirement, such transfer of personal information shall obtain the consent of the subject of the personal information again. Thus, the Conception under the PIPA may invoke the Conception under the General Provision. In conclusion, the conceptions of business transfer in various field shall be formulated differently in accordance with individual legislative purpose.