Whether a person who has lent a name holder's joint liability and construction business license under Article 24 of the Commercial Act on behalf of or on behalf of a person who has lent a name holder's license is liable for subcontract transactions under the name of the licensee (affirmative)

Article 24 of the Commercial Act is a provision to protect the interests of the other party who trades with a person who borrowed the name as the principal agent of the business, and accordingly, the nominal lender is jointly and severally liable for the obligations that the nominal lender bears in the course of performing the business transaction. The person who leased the construction business license is permitted to engage in the construction business by using his name or trade name. However, it is reasonable to view that the construction business license lender is generally permitted to engage in subcontract transactions under the name of the person who lent the license, barring any special circumstances, since it is accompanied by subcontract transactions according to the process in the construction business. Therefore, it is also reasonable to view that the construction business license lender is also permitted to engage in subcontract transactions under the name of the person who lent the license. Therefore, the same applies to the subcontractor who

Article 24 of the Commercial Act

Plaintiff, Ltd.

Defendant corporation

Seoul High Court Decision 2007Na90458 decided May 20, 2008

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

We examine the grounds of appeal.

1. As to the third ground for appeal

Article 24 of the Commercial Act is a provision to protect the interest of the opposite contractual party who trades with a person who borrowed the name as the principal agent of the business, and accordingly, the nominal lender is jointly and severally liable for the obligations that the nominal lender bears in the course of performing the business transaction. The lending person of a construction business license shall be deemed to have permitted the construction business by using his name or trade name. However, it is reasonable to view that the lending person, barring any special circumstance, permits the lending of a construction business license to conduct subcontract transactions in the name of the lending person, since it is generally accompanied by subcontract transactions according to the process in the construction business. Thus, the lending person is also liable for the lending person as the nominal lender, and it does not change even if the lending person misleads the lending person as the principal agent of the business, and the lending person acting on behalf

According to the reasoning of the judgment below, the court below determined that the evidence in its judgment alone is insufficient to recognize that the defendant permitted the non-party 1 or 2 to use the defendant's trade name in relation to the remodeling project of this case, and that the plaintiff's assertion on this part of the name holder's liability under Article 24 of the Commercial Act, the employer's liability under Article 756 of the Civil Act, and the defendant's liability under Article 756 of the Civil Act, is not reasonable

However, according to the records, the Metec Engineering Co., Ltd. was a contract period for the instant remodelling project to Nonparty 1. Nonparty 2 obtained a construction business license from the Defendant upon Nonparty 1’s request, and received two passbooks under the name of the Defendant. The remodelling project of this case was planned to be subcontracted for each process, such as electrical construction, painting construction, etc., and the Defendant was also aware of it. Nonparty 2 and Nonparty 1 entered into the instant remodeling project contract with the contents that the Metec Engineering Co., Ltd. contract for the instant remodeling project to the Defendant using the Defendant’s seal imprint, and delivered Nonparty 1 the Mec Engineering Co., Ltd. to Nonparty 1, who actually executed the instant remodeling project; Nonparty 2, using the above corporate identification book, delivered one passbook and one passbook under the name of the Defendant; Nonparty 1 entered into a subcontract with the Plaintiff and the Plaintiff for construction cost of KRW 73,000,000,000 under the name of the Defendant.

In light of the above legal principles, the defendant lent a construction business license to the non-party 2, and it appears that the non-party 2 et al. knowingly accepted that the remodeling work of this case was contracted to the defendant under the defendant's name by using the corporate reduction place, etc. under the defendant's name, and it appears that the non-party 2 et al., upon entering into the subcontract under the defendant's name, allowed the non-party 1 to enter into the contract of this case with the defendant's name on behalf of the non-party 2 on his behalf or by proxy, so it is reasonable to view that

Nevertheless, the lower court’s decision otherwise determined is erroneous in matters of law such as incomplete deliberation on the relationship of the name lending between the Defendant and Nonparty 2 and Nonparty 1, and misunderstanding of legal principles on the liability of the name lending, which affected the conclusion of the judgment. The ground of appeal on this point is with merit.

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Young-ran (Presiding Justice)