Hyundai Elevator Co., Ltd. (Attorney Kim Young-chul, Counsel for defendant-appellant)

Defendant (Attorney Lee Ho-hoon, Counsel for defendant-appellant)

September 9, 2016

1. The plaintiff's claim is dismissed.

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

The defendant shall pay to the plaintiff 29,832,00 won with 15% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.

1. Basic facts

The following facts are not disputed between the parties, or can be acknowledged in full view of Gap evidence 5, Gap evidence 7, Eul evidence 1, Eul evidence 2, Eul evidence 2, and non-party 1's testimony.

A. On June 2015, the Defendant, a contractor, concluded a construction contract with Nonparty 1, who operates the ○ Comprehensive Architectural Office (hereinafter “instant building”) for the construction of a building listed in the attached Table (hereinafter “instant construction”) (including part of value-added tax) and for the construction period from June 2015 to November 2015 (hereinafter “instant construction contract”), and decided to install eight passenger elevators produced by the Plaintiff under a special agreement.

B. Nonparty 1, the contractor, performed the instant construction work under the name of the Postal Construction Act without a construction business license, and obtained approval from the competent authority on January 13, 2016. On December 9, 2015, the Plaintiff installed eight passenger elevators produced by the Plaintiff on the instant building (hereinafter “instant elevator”).

2. Judgment on the plaintiff's claim

A. Determination as to the assertion that the right to conclude a contract under the name of the defendant was granted

The plaintiff asserts that the plaintiff had a duty to pay KRW 29,832,00,00 to the plaintiff, since the plaintiff entered into a contract for manufacturing, selling, and installing the elevator of this case with the non-party 1, who was authorized to conclude the contract under the name of the defendant, and the plaintiff installed the elevator of this case in the building of this case.

Therefore, as to whether Nonparty 1 was authorized to conclude the instant elevator manufacture, sale, and installation contract in the name of the Defendant, the Plaintiff’s assertion in this part is dismissed as it is without any need to further examine the remainder of the issues and without any justifiable reason. The Plaintiff’s assertion in this part is without merit. The Plaintiff’s assertion in this part is without merit.

B. Determination on the assertion of expression representation

The plaintiff asserts that even if the non-party 1 did not have the authority to conclude the instant elevator manufacture, sale, and installation contract, the non-party 1 did not possess the written contract for the instant construction contract, and the defendant granted the right of representation by allowing the non-party 1 to pay the construction price of the instant case by issuing a debit card under the name of the defendant. The plaintiff acted in good faith and without fault. Thus, the defendant is liable for the act of manufacturing, selling, and installing the instant elevator by the non-party 1, who is an expression agent, pursuant to Article 125 of the Civil Act

In order to have the direct effect of an act by proxy belonging to the principal as an expression agent under Article 125 of the Civil Act, it is clear that the other party to the act by proxy has no power of representation in fact against the other party to the act by proxy (see Supreme Court Decision 2008Da56392, May 28, 2009).

Therefore, in this case, the following circumstances are comprehensively taken into account the Plaintiff’s new elevator address No. 1, Gap evidence No. 2, Eul evidence No. 5, and Eul evidence No. 1, and the overall purport of argument No. 1, i.e., the Plaintiff shows to the Plaintiff’s employees the construction contract of this case (Evidence No. 5, Eul evidence No. 1) and debit cards No. 1 under the Defendant’s name, and it is argued that the Plaintiff prepared an agreement for the manufacture, sale, and installation of the elevator of this case (Evidence No. 1, No. 2), and the alteration of the contract (Evidence No. 1, No. 5) with the Defendant’s seal No. 2, which were signed with the Defendant’s seal No. 1 and No. 1, and the Plaintiff’s seal No. 2, which were signed with the Defendant’s new elevator address No. 1, is not the Defendant’s seal No. 2, but the Defendant’s seal No. 1, which was not the Defendant’s seal No. 2, and the Plaintiff’s seal No. 1, respectively.

C. Determination on the assertion that direct payment should be made pursuant to Article 35 of the Framework Act on the Construction Industry

Although it is not recognized that the Plaintiff and the Defendant entered into the instant elevator manufacture, sale, and installation contract with the Plaintiff, the Defendant, the ordering person, pursuant to Article 35 of the Framework Act on the Construction Industry, is obligated to directly pay to the Plaintiff, the subcontractor, the amount payable to KRW 29,832,00,00 of the instant elevator installation cost. However, there is no evidence to acknowledge that Nonparty 1, as the contractor of the instant construction contract, has subcontracted the instant elevator manufacture, sale, and installation work to the Plaintiff (the Plaintiff asserts that the Plaintiff entered into the instant elevator manufacture, sale, and installation contract with the Defendant as the party to the instant case). The Plaintiff’s allegation in this part is without merit, and it is rejected as it is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

[Attachment]

Judges Choi Han-dae

1) The evidence No. 1 (a written contract for manufacture, sale, and installation of an elevator) is written on June 30, 2015 between the Plaintiff and the Defendant, but the Defendant’s name is affixed with the door door of “non-party 2”.

2) The evidence No. 2 (Contract Modification Agreement) states that the Plaintiff, the Defendant, and Nonparty 2 were written on November 30, 2015 between the Plaintiff, and Nonparty 2, and the Defendant and Nonparty 2 respectively affix their seals on the side of the names of the Defendant and Nonparty 2.