2015dan11477 Other (money)

Korea Coal Corporation

1. A;

2. B

June 22, 2016

August 24, 2016

1. Defendant A shall pay to the Plaintiff 58,600,000 won with 15% interest per annum from January 24, 2016 to the date of full payment.

2. The plaintiff's claim against the defendant B is dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff and the Defendant A is borne by the Plaintiff, and the part arising between the Plaintiff and the Defendant B is borne by the Plaintiff.

4. Paragraph 1 can be provisionally executed.

Text 1 and Defendant B, jointly and severally with Defendant A, KRW 58,600,000, and any objection thereto to the Plaintiff

It shall pay 15% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

1. Claim against the defendant A;

(a) Description of the claim;

On February 4, 2015, the Plaintiff announced a public announcement of the tin transport work at the Do Mining Complex, which belongs to the Plaintiff, and the Defendant A was selected as an eligible business entity by bidding the said work under the name of the C company in which he/she is a joint business entity, but the said Defendant did not conclude the contract without justifiable grounds, and sought a payment of the bid bond according to the said public announcement of tender.

(b) Applicable provisions;

Articles 208(3)3 and 194 (Judgment by Publication)

2. Determination as to the claim against the defendant B

A. On February 4, 2015, the Plaintiff: (a) on February 4, 2015, an emergency bidding notice (hereinafter referred to as “instant notice”) stating the following with respect to the tin transport work at the Do Mining Center affiliated with the Plaintiff (hereinafter referred to as “instant work”); (b)

AB made it.

(Public Notice of Tender) 1. Bidding 1. Bidding 1. Sc. Bidding : Competitive Transport 1,35,720,00 won (estimated price 1,214,290,910 won, additional tax 121,429,090 won) 4. Payment of bid bond 6. Business registration certificate 5. If the successful bidder fails to enter into the contract within four days from the date of notice of successful bid without justifiable grounds, the bid bond amount equivalent to 5/100 of the successful bid price is paid to the plaintiff, and the bid bond amount is restricted to the qualification of participation: The applicant's name and address is stated in the public notice of this case as a joint businessman; the applicant's name and address are stated in the public notice of this case; the applicant's name and address are stated in the public notice of this case as a joint businessman; the applicant's name and address are stated in the name and address of the joint businessman; and the applicant's name and address are stated in the column of the application for participation; the applicant's column 1.

3) The above written application for tender contains the purport that the tender bond will be replaced by a payment note on an electronic bidding document with regard to the payment of the tender bond. The electronic bidding document which is deemed to have been submitted by C company is called as a successful bidder, and where there occurs a cause attributable to the National Treasury because it does not enter into a contract within the prescribed period without justifiable cause after it was selected as a successful bidder, the tender bond equivalent to 5% or more of the successful bidder amount under Article 38 (Reversion of Bid Bond) of the Enforcement Decree of the Act on Contracts to Which the State is a Party at the request of the E company will be paid in cash without delay to the E company. Other measures attributable to the National Treasury are included in the letter of payment of the tender bond and the address of the E company will comply with the decision or request of the E company, and the name and address of the E company will be 10% or more of the tender bond and the name and address of the E company will be stated in the C company's application for the examination.

5) On February 16, 2015, the Plaintiff determined C Company as an eligible business entity for the instant work, and notified it to C Company. However, C Company did not conclude a contract on the instant work with the Plaintiff by March 3, 2015. On March 4, 2015, the Plaintiff notified Defendant A of the fact that it did not enter into the contract on the instant work with the Plaintiff as the unpaid contract bond, and that it would pay in cash the bid bond following the non-contractual contract.

【Reasons for Recognition】 Each entry in the evidence Nos. 1 through 10, and the purport of the whole pleadings

B. The plaintiff's assertion and judgment

1) Claim on the obligation to pay bid bond according to the instant public notice

First of all, the Plaintiff asserts that the Defendants submitted an application to participate in the instant public notice to a joint business proprietor of the C Co., Ltd., and C Co., Ltd, as the result of opening the bid, refused to conclude the contract without justifiable grounds, so Defendant B is jointly and severally liable with the Defendant A to pay the Plaintiff the bid bond under Article 38 of the Enforcement Decree of the Act on Contracts to Which the State is a Party.

The above evidence alone is insufficient to acknowledge that Defendant B submitted an application for participation in the tender with Defendant A on the instant public notice, and there is no other evidence to acknowledge it. Rather, in full view of the purport of the entire pleadings, Defendant A’s statement as to No. 11 and the entire purport of the pleadings.

3. 5. The plaintiff submitted the notice of this case to the public notice of this case and won the bid under the name of the defendant A, but the contract was not concluded because it did not receive the contract bond certificate, and the plaintiff failed to comply with the plaintiff's provision. The sender of the above content-certified mail sent the contents-certified mail to the prior address, and the sender of the above contents-certified mail sent "C. A." In the transmission column at the bottom, A's name is stated in the transmission column at the bottom, and the defendant A's stamp registered as the employee of the C company is stamped. According to each of the above facts of recognition, according to the notice of this case submitted according to the above facts,

Defendant A’s certificate of personal seal impression is attached to his application form for participation in the name, and there was no document attached to Defendant B’s certificate of personal seal impression to be attached to his application form for participation in the bid. Defendant A also appears to have expressed the purport that the said bid is the sole tender of Defendant A at the content-certified mail submitted to the Plaintiff. Accordingly, the Plaintiff’s assertion premised on this premise is without merit. 2) Each of the members’ respective representatives.

The plaintiff, in the case of a partnership that is a Dong company, is a principle for each partner to represent the Dong company. Thus, as long as the defendant A submitted an application for participation in the public notice of this case using the name of the Dong company in the name of the Dong company, the defendant B, a partner, should bear the responsibility for the public notice of this case, the defendant B, but in full view of the purport of the whole pleadings in the statement in the evidence Nos. 1 and 2, the defendants are recognized to have registered the defendants as a joint business proprietor at the time of the business registration of the Dong company that is a Dong company. Thus, the defendants shall be deemed to have jointly performed their duties and represent the C company that is a Dong company. Accordingly, the plaintiff's above

In addition, the Plaintiff asserts that the Defendants are jointly managed by C, and Defendant A submitted an application for participation in the public notice of this case under the name of C, so the obligation to pay the bid bond incurred due to the public notice of this case should be deemed to have been borne by the acts that conduct commercial activities for all members, while Defendant B is jointly and severally liable with Defendant A to pay the bid bond.

If the partnership's obligation is to be borne by the act of commercial activity for all the union members, then it is reasonable to authorize the joint and several liability of union members by applying Article 57 (1) of the Commercial Act (see Supreme Court Decision 9Da49620, Dec. 12, 2000, etc.). However, in order to recognize the joint and several liability for the obligation to pay the bid bond pursuant to the public notice of this case to Defendant B, a member of the Dong C Company, the company, the company, the company, should have the authority to tender the above public notice on behalf of the Defendant A who submitted the application for participation in the public notice of this case.

Therefore, as to whether Defendant A has the authority to make a tender on behalf of the said company C, it is not sufficient to recognize it solely with the health account and the aforementioned evidence, and there is no other evidence to acknowledge it. Therefore, the Plaintiff’s above assertion based on such premise is without merit without examining the remainder of the issue.

4) Claim for liability of the nominal lender under the Commercial Act

Finally, even if Defendant A submitted a request for participation in the public notice of this case solely by using the name of C company in the name of C company, the Plaintiff did not perform the construction work by bidding the same content as the Plaintiff publicly announced on around 2012, and from the joint business operator, it is reasonable to recognize C company as a joint business operator based on the business registration certificate submitted from the Plaintiff’s perspective. Thus, Defendant B asserts that he is liable as the nominal owner under Article 24 of the Commercial Act.

A person who has allowed another person to carry on business by using his name or trade name is jointly and severally liable to pay the third party who has transacted with the latter as a business owner (Article 24 of the Commercial Act). However, in this case, as seen earlier, C Company, which is a partner of the Defendants, jointly represents C Company at the rate of 50% shares of each of the Defendants, without appointing a separate manager, and thus, the execution of its business by the Defendants must be determined by a majority of the partners (Article 706(2) of the Civil Act). Therefore, in order to hold Defendant B, a partner of the same company, liable to compensate for the nominal lender’s liability, it should be recognized that C Company permitted Defendant A to carry on business using the name of the same company, a resolution of a majority of all partners

However, it is insufficient to recognize that the Plaintiff’s circumstances or the aforementioned evidence and the statements in Gap evidence Nos. 12, 13, and 14 are sufficient to recognize that the C company’s members (the C company is an incorporated association of two Defendants, and the consent of all members is essential in order to become a majority) allowed the Defendant to use his/her name and operate his/her business, and there is no other evidence to acknowledge this otherwise. Therefore, the Plaintiff’s above assertion is without merit.

Even if there are circumstances suggesting that Defendant B permitted Defendant A to use the name of the business entity, the liability of the nominal lender under Article 24 of the Commercial Act is to protect a third party who trades by mistake as the business owner. Thus, if the other party to the transaction knew or was grossly negligent in finding the nominal name, the nominal lender shall not be held liable. However, in full view of the overall purport of the arguments as seen earlier, the following circumstances are acknowledged as follows: ① the Plaintiff specified the applicant’s seal impression as a document to be attached to the application for participation at the time of the public announcement of the instant case; ② the Plaintiff submitted the application for participation in the name of the same company, which is a joint business owner, and failed to submit the Defendant B’s seal impression; ③ the Plaintiff was selected as the first priority subject of the qualification examination; ③ Notwithstanding the fact that the Plaintiff was not aware of the fact that the Plaintiff was the nominal lender’s joint representative, and thus, the Plaintiff did not know or was negligent in submitting the application for participation in the name of the same company.

3. Conclusion

The plaintiff's claim against the defendant A shall be accepted on the ground of the reason, and the claim against the defendant B shall be dismissed on the ground of the reason.

Judges Hwang Sung-sung