1. Where two or more members agree to operate a joint business by making a mutual contribution, a partnership is established (Article 703(1) of the Civil Act). In the event that a juristic act was done by an association acting as an association for all members, even though the juristic act was not indicated to be for the purpose of a commercial act, the effect of such juristic act is effective against all members of the partnership (see, e.g., Supreme Court Decision 2008Da79340, Jan. 30, 2009). If a partnership’s obligation is borne by all members due to an act that was performed as a commercial act for all members, it is reasonable to determine jointly and severally liable of the union members by applying Article 57(1) of the Commercial Act (see, e.g., Supreme Court Decisions 2014Da26521, Aug. 20, 201). Meanwhile, in a commercial act, if an agent does not indicate that it was for the principal, the act is effective against the principal and the other party does not know that it is for the principal (Article 48).

2. The lower court determined that the Plaintiff’s claim for the construction price of this case against the Defendant was groundless on the ground that the party who entered into the interior contract with the Plaintiff was the Defendant’s husband C, and that the Defendant’s business registration was completed with respect to the burial of this case and operated together with the husband C cannot be deemed liable for payment of the construction price, even though it was not a party to the construction contract of this case.

3. However, it is difficult to accept the above determination by the court below for the following reasons.

A. According to the records, the defendant completed business registration with the trade name of "E" in Yangcheon-gu Seoul Metropolitan Government, and operated the store of this case with the defendant's husband C, and the plaintiff operating the interior construction business of this case with the plaintiff Eul as the project owner and entered the interior contract of this case as "F point" in the construction contract, and written the name of the construction in the written estimate as "E" and written as "E" in the written estimate. At the time of transfer of the construction contract of this case to the plaintiff several times, C or the defendant expressed as "E" or "F point".

Examining the above facts in light of the legal principles as seen earlier, it is highly probable to view C and C as a partnership relationship under the Civil Act because they are running a joint business at the instant store. Accordingly, even if C and C did not indicate that their legal act is for partnership since they are subsidiary commercial activities for the business of the instant store, it can be deemed that the said legal act is effective to the Defendant, a member of the association. Furthermore, even if C and the Defendant do not regard them as partnership relationship, the agent for commercial activities is established without expressing that they are for the principal, and therefore, it may be deemed that C and C are the business owner, who are the business owner, and there may be room to regard them as the agent who signed the instant construction contract without clearly expressing that they are for the principal.

B. Meanwhile, the Plaintiff asserted that the Defendant should pay the obligation for the construction price of this case since the Plaintiff jointly operates the COE at the instant complaint. Accordingly, the Defendant asserted that there is no payment of the construction price from the first instance court to the lower court, or that there is a defect in the construction, and only the Defendant is the subject of the claim for damages against the Plaintiff. However, it does not dispute at all as to the fact that the Defendant is the subject of the obligation to pay the construction price. However, it is obvious that the Defendant stated that the Defendant’s assertion of the construction price would be against the case where the Defendant is recognized as the party to the contract, not the party to the contract. The lower court, immediately after the conclusion

C. If so, even if the Plaintiff did not explicitly state the assertion on the joint operation of stores and the name of business registration, etc. under the Civil Act, insofar as the Plaintiff is liable against the Defendant based on the joint operation of stores and the name of business registration, etc., the lower court should have deliberated by exercising the right of explanation on the following: (a) whether the Defendant’s responsibility sought by the Plaintiff is based on any legal doctrine; and (b) whether the relationship with the Defendant can be deemed as a partnership arising from mutual investment and joint business management; or (c) whether only the Defendant is a sole business owner and C was liable for concluding a contract without indicating the Defendant’s representative;

Nevertheless, without sufficiently examining the above points, the court below dismissed the plaintiff's claim on the ground that the defendant is not a party to the construction contract of this case. In so determining, the court below erred by misapprehending the legal principles as to the validity of a juristic act representing a cooperative or a cooperative under the Civil Act or an agent for commercial activities, or failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-han

Justices Kim In-young

Justices Lee Dong-won