[공사금][공1989.2.15.(842),219]
Validity of each payment agreement of the nominal name or brokerage fee under the nominal name of a construction business license;
A construction business license agreement that a constructor who has obtained a construction business license lends a construction business license to a person who is not a construction business license shall be null and void in light of the provisions of Articles 5, 6, and 7-4 of the former Construction Business Act (amended by Act No. 3765 of Dec. 31, 1984). Therefore, the agreement on the payment of the lending of a name or the payment of the lending of a placement fee paid in return for the lending of a name is null and void.
Articles 5, 6, 7-4, 38 subparag. 8, 51 subparag. 2, and 51 subparag. 9 of the former Construction Business Act (amended by Act No. 3765 of Dec. 31, 1984)
[Judgment of the court below]
Defendant (Attorney Choi Byung-chul et al., Counsel for defendant-appellant)
Seoul High Court Decision 85Na3720 delivered on October 2, 1986
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
1. According to the reasoning of the judgment below, the court below acknowledged that the defendant, without a construction business license, received KRW 330,00,000 from the non-party Yongnam Food Industry Corporation for the construction of a factory at the original factory at the original price of KRW 330,00,00,00 and, upon the plaintiff's introduction, leased the name from the non-party Dae Kan Construction Corporation which obtained a construction business license necessary for the construction of this case to the construction of this case and executed the construction of this case in the name of the above substitute construction in the name of the above substitute construction. According to the evidence of the judgment, the defendant agreed to pay KRW 19,80,000 to the plaintiff as a commission for the introduction of the above substitute construction at the consideration that the plaintiff introduced the above introduction to the defendant for a loan from the above substitute construction. The court below was just in light of the records, and there was no violation of the rules of evidence or violation
2. A loan agreement under which a constructor who has obtained a construction business license intends to lend a construction business license to a person who is not a construction business license shall be null and void in light of the provisions of Articles 5, 6, 7-4, 38 subparagraph 8, 51 subparagraph 2, and 9 of the former Construction Business Act (amended by Act No. 3765 of Dec. 31, 1984), and thus, the payment agreement of the loan or the payment agreement of the loan in return for the introduction of the loan shall be null and void.
In the above purport, the court below was just to determine that the original fee payment agreement concluded between the plaintiff and the defendant was null and void, and there is no error in the misapprehension of legal principles, such as the theory of lawsuit.
3. Examining the record, it cannot be seen that the Plaintiff’s assertion that the invalidation of the name lending agreement of the Defendant violates the principle of trust and good faith and the principle of no loan, and it can not be seen that the Plaintiff included a claim for return of unjust enrichment or a claim for return of loan in the Plaintiff’s assertion at the original trial.
The argument that the defendant's assertion violates the good faith and the principle of notions, and that the plaintiff's return of unjust enrichment or the claim for return of loan has a failure to exhaust all necessary deliberations, or that there is a failure to exhaust all necessary deliberations, shall not be employed as an attack on the original judgment
4. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Song Man-Ba (Presiding Justice)