(영문) 부산지방법원 2016.10.20 2016나5150 | 리걸엔진

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(영문) 부산지방법원 2016.10.20 2016나5150

보증금반환

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1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

Purport of claim and appeal

The first instance court.

Reasons

1. On November 25, 2014, the Plaintiff entered into a sales agency contract of “D” with “D, Dong-gu Busan Metropolitan City” (hereinafter “instant contract”); on December 1, 2014, the Plaintiff transferred part of KRW 5 million out of the deposit amount to the Industrial Bank of Korea passbook in the name of the Defendant pursuant to the instant contract; the fact that the Plaintiff registered the business of “D” in the name of the Defendant was either disputed between the parties or recognized by comprehensively taking account of the overall purport of the pleadings in each entry in the evidence No. 1 and No. 2.

2. The assertion and judgment

A. After entering into the instant contract, the Plaintiff’s assertion confirmed that the Plaintiff did not have an agency board from the head office “D”. The Plaintiff cancelled the instant contract by serving the duplicate of the instant complaint.

① The Defendant is liable as a party to the instant contract, as C entered into the instant contract on behalf of the Defendant, and even if it is not so, C is liable as a nominal lender who borrowed his/her business registration name to C.

Therefore, the defendant is obligated to return five million won transferred from the plaintiff.

B. (1) The Plaintiff asserts that since C has the name of “D” company in the name of the Defendant and the name of the Defendant, and the Defendant’s bank account number was transferred to C by notifying the Plaintiff of the Defendant’s account number, the Defendant may be deemed to have delegated the right to enter into the instant contract. However, the above name plates, seals, etc. are merely one material that can be recognized as the right to enter into the instant contract, and the burden of proving that C does not necessarily have the right to enter into the agency sales contract on behalf of the Defendant, and that it does not necessarily have the right to enter into the agency sales contract on behalf

(see, e.g., Supreme Court Decision 2008Da42195, Sept. 25, 2008). However, the evidence submitted by the Plaintiff alone is that C is the Defendant.

참조판례

-대법원 2008. 9. 25. 선고 2008다42195 판결

유사 판례

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