(영문) 광주지방법원 2016.8.19.선고 2015나56631 판결

2. The Defendant shall pay to the Plaintiff 23,39,800 won with 20% interest per annum from March 14, 2015 to September 30, 2015, and 15% interest per annum from the next day to the day of full payment.

3. All costs of the lawsuit shall be borne by the defendant.

4. Paragraph 2 can be provisionally executed.

Purport of claim and appeal

The same shall apply to the order.

Reasons

1. Basic facts

A. On September 2013, the Defendant entered into a contract for construction works with respect to the construction works for structural improvement (including value-added tax; hereinafter the same shall apply) with respect to the risk of traffic accidents in the Hancheon-do Road Safety Management Office (hereinafter referred to as the “instant construction works”) around 876,545,00 won (including value-added tax; hereinafter the same shall apply) and the contract period from September 6, 2013 to June 30, 2014 (hereinafter the “original contract in this case”), and around that time, C Co., Ltd (hereinafter referred to as “C”) entered into a contract with respect to the instant construction works on a lump sum basis (hereinafter the “instant subordinate contract”).

However, at that time, the Defendant and C drafted a construction subcontract agreement with C to re-subcontract the construction work of reinforced concrete between September 9, 2013 and June 30, 2014 by setting the contract period of the instant construction work as KRW 599,80,000 and the contract period of the instant construction work.

B. On May 2013, the Plaintiff agreed to lease construction equipment, such as digging machines, etc. (hereinafter “instant construction equipment”) at the instant construction site from May 2013 to February 2014 at the request of D, which claimed that C employee was the Defendant’s field director (hereinafter “instant contract”).

C. Accordingly, from May 2013 to February 5, 2014, the Plaintiff leased the instant building equipment at the instant construction site. The Defendant paid KRW 15,500,000 as the rent for October 2013. However, the Plaintiff did not receive a total of KRW 23,39,800 for the rent for the construction equipment leased from November 2, 2013 to February 5, 2014.

D. However, with respect to the settlement of the above rent, the Plaintiff issued an electronic tax invoice stating the Defendant at the request of the above D, and received the signature of E, a construction machinery lease agreement and work confirmation as of the date of the lease of construction equipment.

E. Meanwhile, from May 2013 to February 2014, the instant construction site agent reported by the Defendant to the office of road safety management in Jeonnam-do was F.

[Reasons for Recognition] In the absence of dispute, Gap evidence Nos. 3, 4, 5, 6, 8, 9, 10, Eul evidence Nos. 1, 2, and 3, Eul evidence Nos. 1, 2, and 3, D's testimony to the witness of the first instance court, and fact-finding to the road safety management office before the court of the first instance, the purport of the whole pleadings as a result of the fact-finding.

2. The parties' assertion

A. The plaintiff

1) The Plaintiff entered into the instant contract with D, the Defendant’s agent, and thus, the Defendant is obligated to pay the Plaintiff rent of KRW 23,339,800, and delay damages therefrom (a contractual liability).

2) If the above D does not have legitimate power of representation, the Defendant is liable for the nominal lender under Article 24 of the Commercial Act, since the Defendant, while entering into a collective subcontract for the original contract of this case with C, lent its construction license and name to C for construction work. Therefore, the Defendant is jointly and severally liable with C to pay rent 23,339,800 and delay damages payable to C (Liability of the nominal lender).

(b) Defendant;

1) The plaintiff is not the defendant but the contract of this case with C, and D is not the defendant's representative, so the defendant is not obligated to pay the unpaid rent to the plaintiff.

2) The Defendant merely subcontracted the instant prime contract to C, but did not lend the Defendant’s construction license and name, and did not permit C to use it. Therefore, the Defendant is not liable for the nominal lender. Even if the Defendant leased the construction license and name to C, the Plaintiff knew of it or was unaware of it due to gross negligence. Therefore, the Defendant is not liable for the nominal lender.

3. Determination,

A. Determination on the contractual liability

1) The Plaintiff asserted that it entered into the instant contract with D, and therefore, we examine whether D has legitimate authority to enter into the instant contract on behalf of the Defendant.

2) Comprehensively taking account of the purport of the entire arguments as seen earlier, the fact that D was an employee of C who received a lump sum subcontract from the Defendant at the construction site of this case and was in charge of the field director performing the work of fair management, etc. on behalf of the Defendant, and was in charge of the name of the Defendant’s field director, can be acknowledged.

However, as seen earlier, the Defendant’s on-site agent at the time of entering into the instant contract was not D but F. In full view of the overall purport of the arguments as seen earlier, it is insufficient to deem that D was granted the right of representation regarding the conclusion of the contract by the Defendant solely on the ground that it appears that D was not the Defendant’s on-site agent, but the Defendant’s overall management of the progress of the instant construction project as the employees of C who received a blanket subcontract for the instant construction project, not as the Defendant’s on-site agent. There is no evidence to

3) Therefore, the Plaintiff’s above assertion is without merit.

B. Determination on the responsibility of the nominal lender

1) Since a lump sum subcontract is prohibited under the Construction Business Act and it is impossible for a person who has a construction business license to subcontract to a person without a license, a subcontractor is bound to allow the subcontractor to use the name of the subcontractor in any form in the performance of construction work (see Supreme Court Decision 91Da18309, Nov. 12, 191). A person who has leased a construction business license permits a person to conduct a construction business using his/her name or trade name. In the construction business, it is general that the number of subcontract transactions is against the fairness, and barring any special circumstance, it should be deemed that a person who has leased a construction business license permits a subcontractor to conduct a subcontract under the name of the person who leased the license using the relevant permit. Thus, the lessor is liable as a nominal lender for the subcontractor, and it does not change even if the person who lent the license by proxy or proxy did a subcontract under the name of the lessor (see Supreme Court Decision 2008Da46555, Oct. 23, 2008).

2) In light of the following facts or circumstances, the evidence as seen earlier, Gap evidence Nos. 7 and 12, which are recognized by comprehensively considering the purport of the entire pleadings, the defendant is deemed to have lent a construction business license for the process that C did not hold a license, or allowed to proceed with construction by using his/her trade name. Therefore, the defendant is liable to pay rent Nos. 23,339,800 and delayed damages payable to the plaintiff according to the instant contract as the nominal owner of the title, unless there are special circumstances.

① As seen earlier, the Defendant entirely subcontracted the instant construction project to C, and C was only holding a construction business license for reinforced concrete construction works, and therefore could not obtain subcontracting for any other construction works under the relevant Acts and subordinate statutes. In such circumstances, in order for C to implement the instant subcontract, it was necessary to obtain a construction business license for the necessary construction process, obtain necessary human resources, machinery, etc. from the Defendant, and directly execute construction works or conduct subcontracting transactions with other companies which have the relevant construction business license.

Among them, it was impossible for C to enter into a contract as a party to the contract because C was not a legitimate subcontractor in the case of subcontracting transaction with another company licensed for the relevant construction business, so it was inevitable to enter into a contract under the name of the defendant.

② All of the claims and tax invoices submitted by the Plaintiff is the Defendant.

③ Both D and E who were staying at the site of the instant construction work are employees of C, and as to double E, the Defendant paid monthly salary. And D are not the Defendant’s employees, but the Defendant’s on-site agent, and only the Defendant’s on-site agent, and it appears that they managed the instant construction site as if they were the Defendant’s employees or on-site agents.

3) As to the above, the defendant asserts that even if the defendant lent his name to C, the plaintiff does not bear liability for the nominal lender because he knew of such fact or because he did not know it due to gross negligence, we examine it.

The liability of the nominal lender under Article 24 of the Commercial Act is to protect a third party who trades by mistake as the nominal owner. Therefore, if the other party to the transaction knew or knew the fact of the nominal name, and there is gross negligence, he/she shall not be held liable. In such a case, the nominal lender claiming exemption from liability bears the burden of proof (see, e.g., Supreme Court Decision 2006Da21330, Jan. 24, 2008).

In full view of the evidence and the purport of the entire pleadings as seen earlier, only C’s employees were permanently stationed in the construction site of this case. At the time of entering into the contract of this case between the Plaintiff and D, a separate contract was not written. The Plaintiff entered into the contract of this case with D with the introduction of D, which was known to D, and there was only a little time, and the work confirmation signed by D was not affixed with the Defendant’s seal.

However, in full view of the aforementioned evidence and the purport of the entire pleadings, it cannot be ruled out that D entered into the instant contract with the Plaintiff using the name of the Defendant, not C, and the Plaintiff could have explained as if it had legitimate authority to use the Defendant’s name. In addition to these circumstances, the above facts alone are insufficient to deem that C was aware that at the time of the conclusion of the instant contract, the Plaintiff was aware of the lending of the name from the Defendant, or was unaware of the interest due to gross negligence, and there is no other evidence to acknowledge this otherwise. Therefore, the Defendant’s assertion is without merit.

C. Sub-decision

Therefore, as the Plaintiff seeks from March 14, 2015, the delivery of the original copy of the instant payment order from March 14, 2015 to September 30, 2015, Article 3(1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings, the main text of Article 3(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (amended by Presidential Decree No. 26553, Sept. 25, 2015), the Defendant is obligated to pay damages for delay calculated at 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc. from the next day to the date of full payment.

4. Sub-committee:

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and since the judgment of the first instance court is unfair on the grounds of its conclusion, it is revoked, and it is so decided as per Disposition by ordering the payment of the above money.