Whether the contract can be deemed as a contract for the other party immediately because the name of the trader was indicated as another person in the stock transaction.

A share purchase and sale transaction may be made in the name of the actual trader, and the name may be made in the name of another person or a person who is not the real name of the trader in the real transaction. As such, it is difficult to readily conclude that the contract is for the other person merely because the name of the trader was indicated in the contract form for the purchase and sale of share certificates, and it is also the same even if the other person possesses the passbook or passbook, or the transaction seal impression with respect to the share transaction as mentioned above, under any circumstances.

Article 539 of the Civil Act

Plaintiff 1 and four others

Eastern Securities Corporation

Attorney Lee Jae-soo, Counsel for the intervenor of an independent party

Seoul High Court Decision 83Na4566, 4567 decided Dec. 26, 1984

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

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below found that the deceased non-party, who is the deceased's decedent, disposed of the Gangnam-gu Seoul ( Address 1 omitted) in the name of the party intervenor around May 1980 and traded shares through a low-dong branch of the defendant company from June 14 of the same year as the price for the sale and purchase of shares in the name of the party intervenor, and entered into a contract to purchase and purchase share certificates with the defendant under the name of the party intervenor, using the seal of the party intervenor, and then received the consignment passbook under the name of the party intervenor from the defendant. The above consignment passbook and seal stamp were owned by the party participant. Meanwhile, the above non-party, on November 24, 1982, ordered the party intervenor to change the name of the trader and seal affixed to the above passbook and seal affixed to the above passbook, but the change of the registration was made, and since the above intervenor's share certificates were deposited in the original list attached to the court below's judgment, the non-party's seal certificates and seal affixed to the above intervenor's.

However, not only can the name of the actual trader be used as the name of the actual trader, but also the name can be used as the name of the other party or the actual transaction, and there is a case where the transaction is conducted under the name of the other party other than the real name of the trader. Thus, the contract cannot be readily concluded to be for the other party merely because the name of the trader was indicated in the old contract for the transaction of share certificates, and the same applies to the case where the other party possesses the passbook or passbook of the transferor of share certificates or the transaction seal impression as to the transaction of share certificates.

When recognizing the fact that the deceased non-party was engaged in the stock transaction in this case as a party intervenor, the same non-party should, in principle, prove that he/she entered into a contract for purchase and sale of share certificates with such intent. If it is impossible to directly prove such fact, the name of the transaction is the name of the party intervenor as acknowledged by the court below, and the fact that the stock transaction in this case was conducted for the party intervenor based on the fact that the account holder's passbook and the transaction seal held by the party intervenor, etc., the court below should recognize that the apartment house recognized as the source of funds was owned by the party intervenor, and even if the apartment house was actually owned by the party intervenor or was purchased with the funds of the above non-party, it should be acknowledged that the above non-party donated to the party intervenor by any relationship, etc. between the two parties, or that the above non-party was conducted for the party intervenor.

Even based on all evidence employed by the lower court, there is no direct evidence that the said stock transaction was conducted for the Intervenor, and there is also insufficient evidence to acknowledge the above circumstances.

Meanwhile, according to the evidence No. 1, the above non-party, which was rejected by the court below, started the above stock transaction with the defendant, and affixed the seal of the intervenor of the independent party in the terms of the contract for the establishment of such transactional unit to the truster, and affixed the seal of the intervenor of the independent party to the transactional unit. However, in the truster's address column, "Seo-gu" was indicated as "Seo-gu" and the truster's address was indicated as the address without any relationship with the intervenor's address or domicile at that time. At the truster's contact space, the truster's contact space was indicated as "Seo-gun ( Address 3 omitted)" which is the address at that time of the non-party's own address at that time. According to the evidence No. 6, considering the fact that the non-party applied for the registration of change of transaction name and transaction seal in its own name at the time of existence, it cannot be viewed that the above non-party's stock transaction in this case

Nevertheless, the court below's decision which concluded that the transaction of the shares in this case and the deposit of its shares was conducted by the deceased non-party for the intervenor in the party, without any evidence, shall be deemed to have acknowledged the facts without any evidence, or to have caused misconception of the facts due to a violation of the rules of evidence or an incomplete hearing, which shall constitute a ground for reversal of Article 12 (2) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial. It is so decided as per Disposition by the assent of all participating judges.

Justices Yoon Yoon-tae (Presiding Justice)