[1] In a case where the husband entered into an agency contract with a food company and submitted the wife's joint and several surety and a certificate of the personal seal impression issued by the wife issued by the wife on which the wife's seal impression is affixed in the name of the wife after the husband entered into the agency contract with the food company, the case holding that it is difficult to view that the wife granted the husband the right of representation as to the joint and several surety merely because the wife was the joint and several surety under the guarantee insurance contract with the husband which the wife entered into before submitting

[2] In a case where a husband entered into a joint and several guarantee contract on behalf of the wife but the right of representation is not recognized, the elements for establishing an expression agency under Article 126 of the Civil Code

[1] Articles 114 and 130 of the Civil Act / [2] Articles 126 and 827 (1) of the Civil Act

[2] Supreme Court Decision 96Da54942 delivered on April 8, 1997 (Gong1997Sang, 1393) Supreme Court Decision 98Da1898 delivered on July 10, 1998 (Gong1998Ha, 2101)

Co., Ltd.

Defendant

Seoul Central District Court Decision 2009Na7457 Decided July 17, 2009

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

The grounds of appeal are examined.

1. On January 1, 2003, after the non-party, who is the husband of the defendant, entered into an agency contract for drinking water supply (hereinafter "the agency contract of this case") with the plaintiff on April 11, 2003, the court below acknowledged that the plaintiff submitted the defendant's certificate of joint and several liability and the defendant's certificate of personal seal issued by proxy on the defendant's name with his seal affixed (hereinafter "joint and several liability of this case"). Meanwhile, on February 5, 2003, the Seoul Guarantee Insurance Co., Ltd. (hereinafter "Seoul Guarantee Insurance") guaranteed the payment of goods to the non-party and the plaintiff. At that time, the court below acknowledged that the defendant, as the joint and several liability of the non-party's joint and several liability contract of this case, signed and sealed directly as the non-party's joint and several liability as the non-party's joint and several liability and submitted its copy and a certificate of personal seal impression to the non-party's agent's right to request the payment of this case to the non-party 1's agent.

2. However, it is difficult to accept the judgment of the court below that the defendant granted the non-party the power of representation on the joint and several guarantee of this case.

First of all, the court below cited the circumstances where the defendant's seal imprint was affixed on the letter of the joint and several surety in this case on the ground that the defendant's seal imprint was affixed to the letter of the joint and several surety in this case, and the fact that the non-party, at the time of the joint and several surety in this case, brought the defendant's seal imprint and affixed it directly, is the plaintiff (Records 173 pages). Furthermore, there is no evidence to confirm the circumstances where the non-party, as above, possessed and used the defendant's seal imprint as above, and the husband can obtain the defendant's seal imprint easily, and the defendant's seal imprint certificate submitted at the time of the guarantee insurance contract in this case was directly issued by the defendant himself, or the defendant's seal imprint submitted at the time of the above joint and several surety in this case was issued by proxy.

In addition, the court below cited the circumstance that the defendant directly and severally guaranteed the above guarantee insurance contract as the ground for recognition of the above guarantee insurance contract, but as shown by the employment evidence of the court below, the above joint and several guarantee guarantees the non-party's obligation to pay for the non-party's goods to the Seoul Guarantee Insurance within the limit of KRW 10 million from February 5, 2003 to February 4, 2004. On the other hand, the above joint and several guarantee guarantees the non-party's obligation to pay for the Seoul Guarantee Insurance without the limit of the non-party's obligation to the plaintiff. Since the above joint and several guarantee of this case guarantees the non-party's obligation to the non-party who already occurred or may occur in the future in connection with the operation of the agency of this case without the limit of the payment of the above guarantee, it is not presumed that the defendant directly and severally guaranteed the above guarantee insurance contract of this case, and it shows a significant difference within the scope of

If so, even if all the circumstances cited by the court below are gathered, it is difficult to confirm the defendant's authorized act as to the joint and several guarantee of this case. The court below determined otherwise, and thus, erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules. The ground of appeal containing such purport is with merit

3. Furthermore, we cannot agree with the lower court’s assumptive judgment as to expressive representation.

As determined by the court below, even if the non-party believed that the non-party had the right to act as the husband of the defendant's family affairs and that the plaintiff had the right to act as a joint and several surety of this case on behalf of the non-party, there is an objective reason to justify the plaintiff's belief that the plaintiff had the right to act as a representative of the non-party under Article 126 of the Civil Act in order to establish the representation of the non-party (see Supreme Court Decision 98Da18988, Jul. 10, 199).

However, the lower court, while it is also an objective reason to justify the Nonparty’s belief that the Plaintiff had the right of representation on the grounds of recognizing the Nonparty’s right of representation on the joint and several guarantee of this case, insofar as it is difficult to confirm the Nonparty’s right of representation on the joint and several guarantee of this case from such circumstances as determined earlier, such circumstances in the same reason cannot be deemed to justify the Nonparty’s belief that the Plaintiff had the right of representation on the joint and several guarantee of this case.

Furthermore, according to the records, the plaintiff only received a guaranty insurance policy issued by the non-party pursuant to the above guaranty insurance contract, and there is no indication that the guaranty insurance policy does not have any indication to confirm the defendant's joint and several liability, barring any special circumstance, the plaintiff at the time of the above joint and several liability insurance contract cannot be deemed to have known the defendant's joint and several liability, and if the circumstances are the same, the above fact of the defendant's joint and several liability should not be considered as a circumstance justifying the plaintiff's belief that

Therefore, since it cannot be deemed that the expression representation under Article 126 of the Civil Act is established with respect to the joint and several surety of this case, the judgment below which judged otherwise is erroneous in the misapprehension of legal principles as to the expression representation. The argument in the grounds of appeal as to this is with merit

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Nung-hwan (Presiding Justice)