[1] In a case where an agent of a union does not indicate that it is for the partnership while doing a juristic act which is used as a commercial activity to the partnership, whether such an act is effective against all the union members (affirmative)

[2] The case holding that the oil supply contract is effective on all the union members, even though the general partner of the union received oil as an auxiliary commercial activity from the union and did not indicate to the other party that it is for the union

[1] Article 114(1) of the Civil Code provides that "an expression of intent that an agent represents for a principal within his/her authority shall take effect on the principal himself/herself," so, in principle, an act of acting for a principal shall take effect on the principal himself/herself, and in the case of a cooperative under the Civil Code, since there is no legal personality in the case of a cooperative, it cannot become the principal himself/herself. In so-called an act of acting for a cooperative, however, it is not necessary to present all the names of the union members, and it is sufficient to indicate an association to the extent that the other party can know. In addition, even if an agent does not indicate that the act of acting for a principal does not indicate that it is for the principal, the act of acting for a principal shall take effect on all the union members who are the principal, even though it does not indicate that it is for the principal." Thus, in the case of acting for a cooperative, even if it does not indicate that it is for the principal, the act of acting for a principal may

[2] The case holding that the oil supply contract is effective under Article 48 (1) of the Commercial Act even if Eul's supply of oil necessary for the above aggregate site and it did not indicate that it is for the other party, even if Eul's supply of oil necessary for the above aggregate site and the other party did not indicate that it is for the partnership, since Eul's act of supplying oil for the purpose of the use of the ground-breaking and ground-off of the above aggregate site as well as heavy equipment, etc. for the ground-off of the above aggregate site can be seen as a general partner of the partnership under the Civil Act.

[1] Articles 114(1), 703, and 704 of the Civil Act; Article 48 of the Commercial Act / [2] Articles 703 and 709 of the Civil Act; Articles 47(1) and 48 of the Commercial Act

Plaintiff (Attorney Seo Sung-sung et al., Counsel for the plaintiff-appellant)

Defendant

Jeonju District Court Decision 2008Na514 Decided October 1, 2008

The judgment of the court below is reversed, and the case is remanded to the Jeonju District Court Panel Division.

1. The judgment of the court below

In light of the adopted evidence, the court below acknowledged that, if the defendant invested KRW 50 million between the non-party and the non-party around August 2006, the non-party entered into a partnership agreement of this case with the content that the non-party would produce aggregate in the aggregate site of this case and distribute its profits by dividing it into 50:50,000. After that, the non-party was to be provided with oil equivalent to KRW 20,450,000 in total from August 18, 2006 to October 19, 2006 with the non-party who operated the gas station for the purpose of using the ground destruction of the aggregate site of this case and heavy equipment invested in the site of this case, the non-party was supplied with oil at the aggregate site of this case where the defendant and the non-party agreed to operate the aggregate production business. Even if the non-party is an executive member of the association composed of the defendant and the non-party, all of its external legal acts should be done by proxy in the name of all association or by proxy of the non-party.

2. The judgment of this Court

However, the court below held that the contract of oil supply did not extend to the defendant, who is another member of the association, on the ground that the non-party did not indicate that the non-party was for the association in its name when he was supplied oil from the plaintiff. However, it is hard to accept for the following reasons.

Article 114(1) of the Civil Act provides that "an expression of intent by an agent for himself/herself, within the authority of his/her own, becomes effective against himself/herself." Thus, in principle, an act by proxy takes effect against himself/herself directly, and in the case of a cooperative under the Civil Act, since it does not become the principal because it does not become the principal in itself, in the case of a cooperative under the Civil Act, it is indicated that all union members are for the principal. However, in so-called an act by proxy, it is not necessary to present the names of all union members and it is sufficient to indicate that the other party is aware of the fact that the act by proxy is for the principal." In addition, Article 48 of the Commercial Act provides that " even if an act by proxy does not indicate that it is for the principal, if the other party does not know that it is for the principal, an act by proxy may request the performance of the legal act by proxy even if it does not indicate that it is for the principal, the act by proxy shall be effective against all union members as the principal.

Upon examining the records in light of the above legal principles, even if based on the facts established by the court below, the non-party was supplied with oil from the plaintiff for the purpose of using the ground-breaking of the aggregate site in the case where the defendant and the non-party agreed to conduct the same business and used used heavy equipment, etc. In such a case, the non-party's act of receiving oil necessary for the aggregate site of this case is sufficient to deem that the defendant and the non-party members of the association engaging in the business of producing aggregate of this case as an auxiliary commercial activity under Article 47 (1) of the Commercial Act. Thus, even if the non-party did not indicate that the plaintiff's provision of oil necessary for the aggregate site of this case from the plaintiff for the plaintiff's business of supplying the oil to the plaintiff, the contract of supplying the oil has the effect of the contract of supplying the oil to all members of the association. Thus, the defendant, as one member of the union, bears the obligation under the oil supply contract between the plaintiff and the non

Nevertheless, without examining whether the non-party's act of receiving oil from the plaintiff constitutes a commercial activity against the union, the court below determined that the effect of the oil supply contract does not extend to the defendant who is another member of the union on the ground that the non-party did not indicate that the non-party was an act for the union when concluding the oil supply contract with the plaintiff. This decision of the court below is erroneous in the misapprehension of legal principles as to commercial representation, or in the failure to exhaust all necessary deliberations,

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment below is reversed, and 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 on the bench.

Justices Jeon Soo-ahn (Presiding Justice)