[1] Requirements for establishing a representation by an indication of granting power of representation under Article 125 of the Civil Code

[2] Whether an expression agent under Article 125 of the Civil Code is established in a case where a member recruitment contract is concluded with a hotel's preferential membership recruitment contract using the name of its sales store, general agency, liaison office, etc., or consented or implied to enter into a membership contract (affirmative)

[1] The expression agency by the indication of the granting of power of representation under Article 125 of the Civil Code may be established in a case where a person, without a direct relation to the nature of basic legal relations between the principal and the person who acts as an agent, provides a third party with the indication of the granting of power of representation in performing a juristic act with a third party on behalf of the principal. Further, the indication of the granting of power of representation by the principal does not necessarily require the expression of the power of representation or the expression of the power of representation to be necessarily used, but rather it can be deemed that there is an indication of the granting of power of representation in a case where he approves or denies the use of a direct box, name,

[2] The case reversing the court below's determination that the above recruitment contract was made as a delegation of quasi-commissioned agency under Article 125 of the Civil Code, and it was erroneous in its misapprehension of legal principles or incomplete hearing on the ground that there is room for establishing an expression agent under Article 125 of the Civil Code if it was consented or implied to provide guidance for invitation of members, or to enter into a membership contract using the name of its sales store, general agency, or liaison office,

[1] Articles 125 and 680 of the Civil Act, Article 101 of the Commercial Act / [2] Articles 125 and 680 of the Civil Act, Article 101 of the Commercial Act

piracy Co., Ltd. (Law Firm International Law Office, Attorneys Lee Won-chul et al., Counsel for the plaintiff-appellant)

Shipping Dae Development Co., Ltd. and one other (Defendant-Appellee, Counsel for the defendant-appellant)

Busan High Court Decision 97Na2375 delivered on October 30, 1997

The judgment below is reversed. The case is remanded to Busan High Court.

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below, based on the evidence adopted in its judgment, concluded a contract for recruiting members who are entitled to preferential treatment for the use of facilities such as hotels operated by the Defendants (hereinafter referred to as "the instant contract") with non-party 2 corporation, Japan on December 2, 198, and entered into such a contract for recruiting members who have a domicile within Japan (hereinafter referred to as "non-party 2"). The contract is effective on the date when the Defendants obtain permission, approval or certification for foreign exchange management (hereinafter referred to as "foreign exchange management permission"), which is stipulated by the Minister of Finance and Economy pursuant to the foreign exchange management laws and regulations of the Republic of Korea, and entered into a special agreement for 00 days in 20 days in 20 days in 197 in 30 days in 197 in 20 days in 30 days in 197 in 30 days in 197 in 197 in 197.

Furthermore, based on such factual basis, the lower court determined as follows: (a) the Plaintiff’s preferential membership recruitment on the part of the Plaintiff for the purpose of the Defendants; (b) even if the Plaintiff did not have the right of representation on the part of the Defendants since the suspension of foreign exchange management at the time of signing the pertinent membership agreement with the Defendants, the Defendants stated that the Defendants had the right of representation to conclude the membership agreement in the name of the Defendants by providing the Plaintiff’s executive director, etc. to the inspection team participating in the Plaintiff’s preferential membership treatment; (c) on the ground that the Plaintiff’s membership agreement entered into with the Elululululululululululululululululuian, was effective in accordance with the legal doctrine of express representation; (d) the Defendants cancelled the membership agreement for this reason; and (e) sought the refund of the deposit and membership fee paid by the Plaintiff; and (e) the Plaintiff’s testimony and arguments on the part of Nonparty 1 for the testimony of the Plaintiff and the purport of Nonparty 1’s pleading, as well as the Defendants’ assertion that the Defendants’ right of representation agreement was partially accepted by Nonparty 1.

2. However, an expression by the indication of the granting of a power of representation under Article 125 of the Civil Act may be established in a case where a person, without a direct relationship as to the nature of a basic legal relationship between the person who performed the act and a third party in performing a juristic act on behalf of the principal, provides the third party with the indication that the person has granted the power of representation. Moreover, the indication of the granting of a power of representation by the principal does not necessarily require the use of the word as a power of representation or an agent, but rather it can be deemed that there has been an indication of the granting of a power of representation even if the person consented or implied to the use of a title, name, etc., which

However, according to the records, in the conclusion of the membership agreement with the plaintiff, etc., the member guide (No. 18, No. 532, No. 18, No. 532, No. 18, No. 532), the member guide book (record No. 51,55), the notice of the procedure after entry (record No. 68), and the return of deposit to the defendants, using the rules (record No. 67, No. 67) containing the contents of the defendants' responsibility, indicate that the name of the defendants as "general agent" (record No. 71), and the conclusion of the membership agreement was used in the form of membership (record No. 172, No. 172) stated by the defendants, and the defendant's entry into the membership agreement was made in the name of the defendant's general agent and Japanese liaison office, and the defendant's 16166, No. 71666, Nov. 6, 207 (No. 1767).

Therefore, in light of the above names, etc. as indicated in the record, it can be deemed that the Defendants entered into an membership agreement with the Plaintiff, etc. on behalf of the Defendants. Thus, if the Defendants consented or impliedly consented to provide membership recruitment guidance or to enter into an membership agreement using the above names, etc., the expressed representation under Article 125 of the Civil Act may be established. However, according to the record, the Defendants’ testimony was given to the Defendants as the “sales Board”, and the Defendants’ testimony was given as the “total Agency and Japanese liaison Office” (No. 18, No. 532 of the record) as well as the Defendants’ representative director, who recommended the Defendants to enter into the membership recruitment and to enter into the membership recruitment agreement with the Plaintiff, and the Defendants’ testimony was given to the Defendants’ testimony to the Defendants’ testimony to the extent that the Defendants’ testimony was given to the Defendant’s 4th of the 5th of the 5th of the 5th of the 4th of the 196th of the 4th of the 196th of the 20th of the 20th of the testimony.

Therefore, the court below did not reach this conclusion, even though it is necessary to review the preparation process and actual use of the above member guide (A No. 18) and the intent of the defendants' preferential member treatment as to the inspection travel team, and further examine whether or not the defendants indicated the granting of the power of representation. Thus, the court below erred by misapprehending the legal principles as to the establishment of the expression agent under Article 125 of the Civil Code and failing to exhaust all deliberations, thereby affecting the conclusion of the judgment. The part pointing this out in the grounds of appeal is with merit.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be 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 Park Jong-chul (Presiding Justice)