[대여금][집37(3)민,64;공1989.10.15.(858),1403]
Whether the liability of the nominal lender under Article 24 of the Commercial Act extends to the act of an employee of the nominal borrower (negative)
The provisions of Article 24 of the Commercial Act on the responsibility of the nominal lender of a name are expressions of the principle of protection of external appearance in a transaction and the reflective words, and where the nominal lender has permitted the use of his name or trade name as a proprietor of a transaction (the broad concept of business operator is not a merchant as defined in Article 4 of the Commercial Act), that the nominal lender is responsible for the repayment of his/her obligation in a transaction that he/she has gained by using it as a juristic act. Therefore, the responsibility of the nominal lender of a name is limited to the act of the person permitted the use of the name and the act of the nominal borrower's employee.
Article 24 of the Commercial Act, Article 756 of the Civil Act
Supreme Court Decision 87Meu1379 Decided November 24, 1987
[Judgment of the court below]
Attorney Kim Hong-hwan, Counsel for the defendant-appellant
Seoul High Court Decision 87Na4670 delivered on September 30, 1988
The case shall be remanded to Seoul High Court by destroying the part against the defendant among the original judgment.
As to the Grounds of Appeal
According to the reasoning of the judgment, the court below concluded a contract between the above incorporated association and the above incorporated association on Jan. 10, 1986 that the defendant decided on Sep. 10, 1985 that the above non-party 1 would use the above market construction work under the name of the defendant company, and that the above non-party 1 would pay the above construction cost to the defendant 10,000,000 won to the non-party 2's employees for the above new construction work under the name of the non-party 1's company, and that the non-party 1 would be responsible for the above new construction work under the name of the non-party 2's office under the name of the non-party 1's company, and that the non-party 1 would be responsible for the above new construction work under the name of the non-party 1's office's own name, and that the non-party 2 would be responsible for the above new construction work under the name of the defendant's office's new construction work at the above site.
However, Article 24 of the Commercial Act provides that a person who has allowed another person to engage in business using his name or trade name shall be liable for the act of a third party who has transacted his name with the other person as an owner of business, which states that he is jointly and severally responsible for the payment of debts to the third party who has transacted with the other person as the owner of business. When the name lender permits the third party to use his name or trade name as an owner of business (the name of the third party is a broad concept than a merchant under Article 4 of the Commercial Act for which the third party is engaged), it shall be limited to the fact that the name lender is responsible for the payment of debts to the transaction that he has caused by using the name or trade name. Thus, if the defendant permitted the third party to use his name from the plaintiff, the defendant's liability based on this fact cannot be viewed as an act of the name borrower's employee, regardless of the fact that the court below's judgment was made with a representative representing the name of the employee, which is the owner of the non-party 1's own reason, and thus, it cannot be viewed that the non-party 1's representative is justified (the above.).
Therefore, the part against the defendant in the original judgment shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Yong-ju (Presiding Justice)