[대여금청구사건][고집1974민(1),86]
Method of acting as an expression agent by the display of granting power of representation.
If the principal who has indicated that the power of representation has been granted to a third person, is liable for any act between the other person and the third person, it is required that the other person indicate that he has given the power of representation to the third person for the principal.
Article 125 of the Civil Act
Plaintiff
Defendant 1 and one other
Seoul Central District Court (72Gahap228) in the first instance trial
The plaintiff's appeal is dismissed.
Expenses for appeal shall be borne by the plaintiff.
The original judgment shall be revoked.
The defendant et al. shall jointly and severally pay to the plaintiff an amount of KRW 1,925,00 with an annual interest of KRW 30% from November 21, 1971 to August 2, 1972 and an amount of KRW 25% per annum from August 3, 1972 to the full payment.
When the above claim is groundless, the defendant et al. shall pay to the plaintiff 1,925,00 won with 5% interest per annum from the day following the day when the gushe was served with the defendant et al. to the day of full payment.
When all of the above claims are without merit, defendant 2 shall pay to the plaintiff an amount of 1,900,000 won with an annual interest rate of 5% from the next day after the day when the principal was served so as to make up to the same defendant.
All the costs of lawsuit shall be borne by the defendants in the first and second instances.
The plaintiff asserted that the defendant 1 corporation borrowed gold 1,925,00 won from the plaintiff on November 20, 1971; 7 5 % per interest month; 7 % per December 20 of the same year; and the defendant 2 jointly and severally guaranteed it. Thus, it is insufficient to recognize that the defendant 1 corporation borrowed the above argument jointly and severally; the witness of the court below and the testimony of the non-party 1 of the court below and the non-party 2 of the trial court are insufficient to prove that the defendant 1 corporation borrowed the above argument; Eul evidence 1 of the above supporting evidence is not evidence in light of the following considerations; Eul evidence Nos. 1, 25,00 won per interest month; 3% per December 20 of the same year; and the defendant 2 cannot be accepted from the non-party 2 of the above 1's above statement on the non-party 40 ; and the non-party 1 of the above statement on the non-party 2 of the above statement on the loan 1 of the defendant 20 1.
Next, even if the plaintiff does not do so, the defendant 2, as the representative director of the defendant company, is the non-party 5, and actually plays the role of the representative director of the defendant company, has been sitting the non-party 3 in the outside of the interference of the defendant company, and he has to entrust his external monetary transactions to the defendant company to approve only. Thus, even if there was no power of representation only in the case of the defendant company, the defendants should be held liable as the principal under Article 125 of the Civil Act.
However, according to the above evidence Nos. 2 and 3, defendant 2 is a director of the defendant company and his representative director, and the non-party 3 is an employee of the defendant company from 1966 to 12, 1971. However, even if the plaintiff's awareness is examined, it is not possible to find any evidence to regard that the plaintiff or the non-party 2 delegated the defendant's external monetary transaction to the non-party 3, and in order for the defendant to be responsible for the acts between the third party and the third party, to indicate that the other party granted the right of representation to the third party and to act on behalf of the third party, the non-party 3 requested to borrow money on his own behalf, and the non-party 2 cannot be viewed as refusing to deliver the plaintiff's check after the non-party 3's request for the payment security to the non-party 2's own name. Thus, it cannot be viewed as refusing to do so.
In addition, even though the plaintiff's assertion is groundless, the defendant company employed the non-party 3 and had the non-party 3 engage in the work of acquiring operating funds, such as borrowing money from the outside, and the defendant 2, as the actual operator of the defendant company, entrusted the checks and seal affixed to him and borrowed funds from time to time. Thus, even if the above check (Evidence A A) is forged for domestic affairs, the non-party 3, as an employee of the defendants, caused damage to the plaintiff by forging the above check, thereby causing damage of KRW 1,925,00 to the plaintiff. Thus, the defendants are obligated to compensate the above damage as the employer.
Therefore, according to the evidence Nos. 2 and 3 above, although the non-party 3 is an employee of the defendant company from Sep. 1969 to Jul. 1970, it can be acknowledged that the non-party 2 was subject to the check book and the seal that he/she traded with the independent bank's office of commercial bank from Sep. 1969, and that he/she was acting as an agent for the external financial transaction. However, according to the above, the above act of forging a check is a time when the above agency relationship exists after the wheeler's borrowing of money, and it is clear that the non-party 3 borrowed money. In light of this, it is difficult to see that the above act of forging a check was conducted with respect to the execution of duties of the defendant, etc.
Finally, even if all of the above notes are groundless, the plaintiff's 1,900,000 won out of the funds borrowed by the plaintiff to the non-party 3 is a cashier's check issued by the head office of the Industrial Bank of Korea, and since it was deposited into the same defendant's account as the non-party 2 bank's independent bank's account as of October 23, 1971, the defendant should return the above amount because of unjust enrichment.
According to the above evidence No. 3, the fact that the defendant bank deposited into the defendant bank's account as alleged above was peeped, or according to the testimony of the non-party 3, it can be acknowledged that the non-party 3 received the above argument check and then the defendant 2 was deposited into the defendant's account in the same defendant's account and used immediately after the deposit in the defendant's account, and there is no other evidence, so the defendant did not gain any profit without any legal ground. Thus, the plaintiff's assertion is groundless.
Therefore, the plaintiff's assertion is groundless, so the plaintiff's claim of this case is dismissed, and the judgment of the court below with the same conclusion is just, and the plaintiff's appeal against this is without merit, and the costs of appeal are assessed against the plaintiff who has lost, and it is so decided as per Disposition.
Judges Jeon Soo-dae (Presiding Judge)