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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. The assertion and judgment
A. The Plaintiff’s primary assertion: (a) supplied LPG gas to the Defendant by the end of November 201; and (b) did not pay KRW 45,384,895 out of the price; and (c) the Defendant is obligated to pay the said money and damages for delay to the Plaintiff.
Preliminaryly, even though the Plaintiff made the above transactions with C, C used the Defendant’s name in accordance with the Defendant’s permission, and the Plaintiff was mistaken for the Defendant as the business owner, and thus, the Defendant bears the responsibility of the nominal lender under Article 24 of the Commercial Act.
B. 1) First of all, in light of the following facts, it is insufficient to acknowledge the fact that the Plaintiff supplied the Defendant with the gas as above by itself, and there is no other evidence to acknowledge it. Accordingly, the Plaintiff’s above assertion is without merit. 2) Any person who allowed another person to operate his business using his name or trade name, as the owner of the business, is jointly and severally liable with the third party who trades with the other party by mistake as the owner of the business.
(Article 24 of the Commercial Act). In addition, the liability of the nominal lender under Article 24 of the Commercial Act is to protect a third party who trades by misunderstanding the nominal titleholder as an employer. Therefore, if the other party to the transaction knew of or was grossly negligent in making the fact of the nominal lender, he/she shall not be held liable. In such a case, the nominal lender who asserts exemption bears the burden of proof as to whether the other party to
(see, e.g., Supreme Court Decisions 91Da18309, Nov. 12, 1991; 2000Da10512, Apr. 13, 2001). However, comprehensively taking account of the respective descriptions of the evidence Nos. 3 and 4; and the overall purport of the testimony and pleadings of the witness C, the Plaintiff supplied gas to C until the end of November 201 and the registration of D operated by C is subject to the Defendant’s permission.