[1] The method of determining the party to the contract where the actor entered into the contract under another person's name

[2] Whether the transferor withdraws from the contractual relationship in acquiring a contract, and whether the obligation between the other party and the transferor terminates (affirmative in principle)

[1] In a case where an actor who executes a contract did a juristic act in the name of another person, as to whom the actor or the nominal owner is the party to the contract, the intent of the actor and the nominal owner shall be determined as the party to the contract in accordance with the consent of the other party. In a case where the intent of the actor and the other party are inconsistent, if the other party does not coincide with each other, the other party shall be determined in accordance with the specific circumstances before and after the conclusion of the contract, such as the nature, content, purpose, and circumstance of the contract.

[2] The acquisition of a contract for the purpose of succession to the status as a party to a contract may be done by agreement between the transferor and the transferee related to the contractual status and the other party's consent or acceptance. Unless there are special circumstances, such as where the other party reserved the transferor's exemption from liability in granting the consent or acceptance, the transferor withdraws from the contractual relationship and therefore, the obligation of the other party becomes extinct as the contractual relationship does not exist between the other party and the transferor.

[1] Article 105 of the Civil Act / [2] Articles 453 and 454 of the Civil Act

[1] Supreme Court Decision 93Da3632 delivered on March 3, 1995 (Gong1995Sang, 1551), Supreme Court Decision 2000Da3897 delivered on May 29, 2001 (Gong2001Ha, 1455), Supreme Court Decision 2003Da44059 Delivered on December 12, 2003 (Gong2004Sang, 125) / [2] Supreme Court Decision 85Da733, 734 delivered on September 8, 1987 (Gong1987, 1544), Supreme Court Decision 91Da32534 delivered on March 13, 192 (Gong1992, 1300), Supreme Court Decision 206Da16649 delivered on February 16, 196)

Plaintiff (Law Firm Seo-Gyeong, Attorneys Kim time-limit et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Attorneys Ahn Yong-soo et al., Counsel for the defendant-appellee)

Busan High Court Decision 2006Na7181 Decided April 20, 2007

The part of the judgment below against the Defendants is reversed, and that part of the case is remanded to Busan High Court.

1. As to the determination of parties to the instant contract

A. The judgment of the court below

In full view of the selected evidence, the lower court: (a) concluded a new construction contract with Defendant 1 on November 21, 2003; (b) concluded a new construction contract with Defendant 1 on the ground that: (c) the Plaintiff had no comprehensive construction license; (d) paid a license fee to Nonparty 1 Co., Ltd.; and (e) concluded a comprehensive construction contract with Defendant 1; and (e) concluded a construction contract with Defendant 1 on the premise that the Plaintiff would have been issued and delivered the said construction contract price to Defendant 1 under the name of Nonparty 1; and (e) concluded a new construction contract with Defendant 1 on the premise that the Plaintiff would have been issued and delivered the said construction price to Nonparty 1 in the name of Nonparty 1; and (e) concluded a new construction contract with Defendant 1, the lower court determined that the Plaintiff would have become aware of the remainder of the construction contract price that the Plaintiff would have received from Nonparty 1’s construction contractor’s construction contractor’s construction contractor’s construction contractor’s construction contract in the name of Nonparty 1 and Nonparty 1’s construction contractor’s construction contractor’s construction contract.

B. The judgment of this Court

However, we cannot accept the above decision of the court below for the following reasons.

In cases where an actor who enters into a contract performs a juristic act in another person’s name, as to whom the actor or the nominal owner is the party to the contract, the parties to the contract shall be determined according to the same intent if the actor and the other party agree with each other. In cases where the intent of the actor and the other party is not in accord with each other, the other party shall be determined by whether to understand either the actor and the nominal owner as the party to the contract, in accordance with the specific circumstances before and after the conclusion of the contract, including the nature, content, purpose, and details of the contract (see Supreme Court Decision 2003Da44059 delivered on December 12, 2003).

According to the records, if the standard contract for the construction work of this case was entered into between the Plaintiff and Nonparty 1 and Nonparty 4, the contractor column, and the construction work execution contract (Evidence A-2) attached to the above construction work contract, stated “Defendant 1,” and the contractor’s name “Defendant 1 and the Plaintiff,” and the contractor’s name was changed from Defendant 1 to Defendant 2, the contractor column stated that “Defendant 2” and “Defendant 4” were to confirm the change of the owner’s name (Evidence A-3) and “Defendant 1 corporation’s representative director,” and the Plaintiff’s name was transferred to Nonparty 1 to Nonparty 3 (Evidence 2) on the basis that the Plaintiff did not receive any balance of the contract from Nonparty 1 after completion of the construction work of this case, and the Plaintiff did not request the Plaintiff to pay the remainder of the contract to Nonparty 1, 200,000,000 won to Nonparty 2, 300,000,000 won.

Nevertheless, the court below decided that the plaintiff is a party to the contract of this case on the grounds as stated in its reasoning. The court below erred in the misapprehension of legal principles as to the confirmation of the parties or in violation of the rules of evidence, and such illegality has influenced the judgment.

2. As to the transfer of contractual status

A. The judgment of the court below

The court below rejected Defendant 1’s assertion that Defendant 1 was out of the position of the contractor under contract with Defendant 2 while changing the name of the building owner to Defendant 2 with Nonparty 1 with the consent of Nonparty 1, and Defendant 1 was out of the contract for construction work between Defendant 2 and Nonparty 1. Defendant 1 continued to have changed the name of the building owner into Defendant 2 even after December 1, 2004, and Defendant 1 continued to pay the compensation for delay due to the delay in construction and the cost of the construction materials directly paid by the building owner to Nonparty 1. The court below rejected Defendant 1’s assertion that Defendant 1 continued to be out of the contract with Defendant 2, based on the following facts: (a) attending the contract as the contractor at the coffee shop in the Jininan-ean-ean City building and the cost of the construction materials directly paid by the owner; and (b) attending the contract as the contractor at the coffee 1’s obligation to the Plaintiff and Nonparty 2; and (c) determined that the Defendants continued to pay the above construction cost to the Plaintiff 1 and Nonparty 2.

B. The judgment of this Court

However, the above judgment of the court below is also hard to accept for the following reasons.

Unless there are special circumstances, such as the agreement between the transferor and the transferee regarding the contractual status and the other party's consent or consent, the transferor's withdrawal from the contractual relationship and the other party's obligation is extinguished as the contractual relationship does not exist between the other party and the transferor does not exist.

According to the records, Defendant 1 transferred the status of the contractor for the construction of this case to Defendant 2, and the non-party 1 company, the contractor, consented thereto, and the non-party 1 company cannot find the data that reserved the exemption against Defendant 1 while consenting to the transfer of the status of the contractor for the construction of this case between Defendant 1 and Defendant 2. Thus, it is reasonable to view that Defendant 1 retired from the contract of this case.

Nevertheless, the court below judged that Defendant 1 still bears the obligation to pay the contract price as a contractor under the above contract, based on its stated reasoning. In so doing, the court below erred by misapprehending the legal principles on the acceptance of the contract, and it has affected the judgment.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part of the judgment below against the Defendants is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Ji-hyung (Presiding Justice)