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수원지방법원안양지원 2015.10.29 2015가단11838
계약금반환
Text

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Basic facts

A. The defendant is the representative of C who conducts the import business of functional health foods, and the actual operator of C is D who is the defendant's husband.

B. On March 11, 2014, the Plaintiff entered into an miscarriage crack agreement with D, and paid D the down payment of KRW 20,625,000, but D did not supply the miscarriage germs under the said agreement to the Plaintiff.

C. The Plaintiff filed a lawsuit against D against D to claim the down payment under this Court Order 2014Gadan20477, and on November 19, 2014 in the instant case, “D shall pay KRW 20,700,000 to the Plaintiff by February 28, 2015. The Plaintiff and D confirmed that the total sales price was rescinded on March 11, 2014, and did not raise any civil or criminal objection in the future,” the conciliation was concluded that “The Plaintiff was paid KRW 624,540 by compulsory execution against D.”

[Ground of recognition] The fact that there is no dispute, Gap's 1 through 5, Eul's 1, the purport of the whole pleadings and arguments

2. Determination on the cause of the claim

A. The gist of the Plaintiff’s assertion is that the Plaintiff entered into an miscarriage marry contract with the Defendant, and the Defendant is the representative of C, and the Defendant is jointly and severally liable with D to pay the remainder down payment of KRW 20,000,460 (=20,625,000 – KRW 624,540) to the Plaintiff and the delay damages therefor.

B. According to the above facts of recognition 1, since the parties who entered into an miscarriage crack contract with the plaintiff are not D, the plaintiff's assertion premiseding that the defendant is a party to the miscarriage crack contract with the plaintiff is without merit. 2) Next, we examine the plaintiff's assertion as the name truster's liability under the Commercial Act.

(A) Article 24 of the Commercial Act provides that "a person who has allowed another person to run a business using his/her name or trade name shall be jointly and severally liable to pay to the third person who has transacted by misunderstanding that person as the proprietor of the business."

(B) In addition to the above-mentioned facts, the following facts are recognized by comprehensively taking account of the descriptions of Gap evidence Nos. 3 and 4 and the purport of the entire pleadings.

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