Whether a person who has continuously used the name of the fixed place of work is liable for the lease of the fixed place of work in the fixed place of work (negative)

The liability of the nominal lender under Article 24 of the Commercial Act is limited to a third party who misleads the nominal lender as the owner of the business and trades with the nominal user within the scope of the business. As such, in a case where the lessee of the fixed place of business continues to use the name of the lessor, the business indicated by the name of the leased lessor is clear, and even if the lessee leases the warehouse and the house in the fixed place of business to a third party, the act of the nominal lender to lease the store and the house in the fixed place of business to the designated place of business is the purpose of the leased act to raise the cost of construction of the fixed place of business, even though the nominal user was said to be above the purpose of the leased act,

Article 24 of the Commercial Act

[Judgment of the court below]

Defendant 1 and two others

Gwangju High Court Decision 82Na101 delivered on November 5, 1982

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The ground of appeal No. 1 by the Plaintiff’s attorney is examined.

1. According to the reasoning of the judgment of the court below, the court below acknowledged that the plaintiff operated the 00 U.S. building under the trade name of 00 U.S., and leased each part of possession to the defendants as stated in the judgment of the court below while using the same trade name as it was operating the 10 years old building, etc., to the non-party. At the time of each lease contract, the non-party is the plaintiff's agent who is not in charge of the 50 U.S. building, and the non-party is still in charge of the 50 U.S. building's business. The court below determined that all the above buildings are incidental to the 100 U.S. building's warehouse or the 500 U.S. house, and leased it to the non-party for the purpose of raising funds for the expenses to be set up between the 100 U.S. building and the 500 U.S. road construction map, and concluded the above lease contract with the plaintiff as the above non-party.

2. However, the liability of the nominal lender under Article 24 of the Commercial Code is the responsibility of the nominal lender to the third party who misleads the nominal lender as the nominal lender and trades with the nominal user within the scope of the business, and thus, the nominal lender cannot be held liable for any transaction other than the scope of business.

However, according to the facts found by the court below, it is clear that the plaintiff's business indicated by the trade name lent by the plaintiff is a small business, and the non-party's lease of each of the buildings of this case to the defendants shall be deemed as an act within the scope of the plaintiff's small and medium business. The above lease building is located within the site of the small and medium-sized building and the purpose of lease is to raise the cost of construction of the small and medium-sized warehouse, such circumstance alone does not constitute a transaction within the scope of the small and medium-sized business.

Ultimately, the court below erred by misapprehending the legal principles as to the scope of liability of a nominal lender under Article 24 of the Commercial Act, which affected the conclusion of the judgment, and it constitutes a ground for reversal under Article 12 (2) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings.

3. Therefore, without examining other grounds of appeal, we reverse the judgment of the court below and remand the case to the Gwangju High Court. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Lee Sung-soo (Presiding Justice)