209, 4278 Construction Price, etc.

1. Al;

2. A2;

3. A3;

4. A4.

5. A5;

6. Stock company.

Representative Director;

7. A6.

8. A7.

19. A8 (At 65 Years, South Korea)

[Plaintiff-Appellant] Plaintiff International Law Firm

Attorney Kim Jong-young, Counsel for defendant-appellant

Design Corporation

(1) The representative director.

Law Firm Han-young, Attorney Han-young

[Defendant-Appellant] Plaintiff 1

August 12, 2009

September 2, 2009

1. The defendant shall pay to the plaintiff A1 46,775,790 won, the 31,100,000 won to the plaintiff A2, the 32,600,000 won to the plaintiff A3, the 18,600,000 won to the plaintiff A5, the 33,473,000 won to the plaintiff corporation, the 36,466,166 won to the plaintiff A6, the 14,200,000 won to the plaintiff A7, and the 20% amount per annum from the next day to September 2, 2009 to the day of full payment.

2. The plaintiff A1 and his respective claims and the plaintiff A8 are dismissed, respectively.

3. 소송비용 중 원고 A2, A3, A4, A5, A6, A7과 피고 사이에 생긴 부분은 피고가 부담하고, 원고 A1, 주식회사 ▣과 피고 사이에 생긴 부분의 1/10은 원고 A1, 주식회사이, 나머지는 피고가 각 부담하며, 원고 A8과 피고 사이에 생긴 부분은 원고 A8 이 부담한다.

4. Paragraph 1 can be provisionally executed.

피고는 원고 A1에게 57,775,790원, 원고 A2에게 31,100,000원, 원고 A3에게 32,600,000원, 원고 A4에게 18,600,000원, 원고 A5에게 8,100,000원, 원고 주식회사 ▣에게 34,340,630원, 원고 A6에게 6,466,166원, 원고 A7에게 14,200,000원 및 위 각 금원에 대한 이 사건 소장 부본 송달일부터 다 갚는 날까지 연 20%의 비율에 의한 금원을, 원고 A8에게 50,000,000원 및 이에 대한 2008. 8. 10.부터 다 갚는 날까지 월 1,500,000원의 비율에 의한 금원을 각 지급하라.

1. Basic facts

The following facts are not disputed between the parties, or are acknowledged by Gap evidence 1 through 5, Gap evidence 6-1 through 5, Gap evidence 7-1 through 5, Gap evidence 8, Gap evidence 9-1 through 3, Gap evidence 11, witness F1, and F2's testimony as a whole.

가. 원고 A1은 공업사라는 상호로 샤시공사업을 하는 자, 원고 A2는 ◆건업이라는 상호로 금속시공업을 하는 자, 원고 A3은 □창호라는 상호로 인테리어공사업을 하는 자, 원고 A4는 ■인테리어라는 상호로 도장공사업을 하는 자, 원고 A5는 △하우징이라는 상호로 인테리어 큐비클공사업 등을 하는 자, 원고 주식회사 ▣은 석재가공 및 판매업 등을 하는 법인, 원고 A6은 ▲라는 상호로 건축자재 도소매업 등을 하는 자, 원고 A7은 다 상호로 유리공사업을 하는 자이고, 피고는 실내 건축 공사업 등을 하는 법인이다.

나. 피고는 2007년경 주식회사 기공으로부터 부산 해운대구 우동 센텀시티 소재 ♤ 센텀 신축공사 중 공용부 인테리어 공사(이하 '이 사건 공사'라 한다)를 하도급 받은 후, 같은 해 6. 21. 인테리어라는 상호로 인테리어 공사업을 하는 C에게 위 공사를 공사대금 1,116,500,000원(부가가치세 포함), 공사기간 2007. 6. 21.부터 2008. 12. 31.로 정하여 재하도급 주었다.

(c) Conclusion of subcontracts, etc.;

1) On December 27, 2007, Plaintiff A1 re-subcontracted the construction cost of KRW 165,00,000 (including value-added tax) and the construction period from December 27, 2007 to December 31, 2008, from Plaintiff A1, who was the director of the Defendant’s Busan branch office and the officer of the general responsibility for the field supervision of the instant construction site, for the entire metal works of the Ministry of Land, Infrastructure and Transport to the third floor of the instant construction site (excluding any part of the instant construction works) among the instant construction works, with the payment of KRW 118,224,210 out of the construction cost.

2) On February 20, 2008, Plaintiff A2 was re-subcontracted with the construction cost of KRW 58,300,000 (including value-added tax) and the construction period of February 20, 208 to December 31, 2008, and was completed on December 31, 2008, but only KRW 27,200,000 out of the said construction cost was paid by Plaintiff C, the director of the Defendant’s Busan branch office and the person responsible for overall management at the construction site of the instant construction.

3) On March 5, 2008, Plaintiff A3 was re-subcontracted with construction cost of KRW 72,600,000 (including value-added tax) during the instant construction work and the construction period from March 5, 2008 to December 31, 2008, and completed the construction work on December 31, 2008, but only KRW 40,000,000 out of the said construction cost was paid.

4) On March 10, 2008, Plaintiff A4 was re-subcontracted with construction cost of KRW 1 to 4,000,000 (including value-added tax) of the instant construction work among the instant construction work from Plaintiff C, who is the director of the Defendant’s Busan branch office and the person in charge of the field management of the instant site, and was paid KRW 25,40,000 out of the said construction cost, for the construction period from March 10, 2008 to December 31, 208. However, the construction work was completed on December 31, 2008, but only KRW 25,400,000 out of the said construction cost was paid.

5) On February 15, 2008, Plaintiff A5 was sub-subcontracted with the construction cost of KRW 12,100,000 (including value-added tax) during the instant construction work from Plaintiff A5, a director of the Defendant’s Busan branch office and the person in charge of the field general management of the instant field, for a fixed period of time from February 15, 2008 to December 31, 2008, and the construction cost of KRW 4,000,000 out of the said construction cost was completed. However, Plaintiff A5 was paid only KRW 4,00,000 among the said construction cost.

6) 원고 주식회사 ▣은 2007. 8. 23., 2008. 2. 20., 2008. 8. 20. 각 피고의 부산지사 이사이자 이 사건 현장총괄책임자라는 C과 사이에 이 사건 공사에 소요되는 대리석 복합타일(보티치노, 마론앰페라도) 등 계약금액 합계 212,300,000원(= 131,560,000원 + 68,640,000원 + 12,100,000원) 상당에 대한 물품공급계약을 체결하고, 위 금원 상당의 자재를 공급하였으나, 위 계약금액 중 178,827,000원만을 지급받았다.

7) Plaintiff A6 agreed to supply ice lease materials, etc. between Plaintiff A6 and C, who is the Defendant’s director of the Plaintiff’s Busan branch office and the instant field general manager, to supply the materials equivalent to KRW 18,516,36 in total from March 14, 2008 to May 13, 2008. However, Plaintiff A7 received only KRW 12,050,200 out of the above amount. Plaintiff A7 received payment on February 15, 2008 from Plaintiff A7, who was the Defendant’s director of the instant field general manager, and was paid only KRW 24,20,00,00 (including value-added tax), and the construction cost of the first to the fourth and third-class glass of the instant construction from February 15, 208 to December 31, 208; however, Plaintiff A7 received a subcontract for the construction cost of KRW 12,000 among the construction cost.

9) 원고 A1, A2, A3, A4, A5, 주식회사 , A7이 C과 체결한 계약서의 발주자(매 수인) 란에는 “서울시 강남구 청담동 ○ ▦빌딩 4층, (주)디자인 대표이사 D, 부산지사 이사 C”이라고 기재되어 있고, C의 이름 옆에 C의 개인도장이 찍혀 있다(원고 A6은 C과 별도의 계약서를 작성하지는 않았으나 원고 A6이 작성한 납품내역서의 수신자 명의가 피고로 되어 있다).

D. Meanwhile, Plaintiff A8, who had worked as the Defendant’s on-site director, deposited KRW 27,300,000 on March 10, 2008 at the national bank account (Account Number: X-X-X) in the name of the Defendant’s on-site director, and KRW 27,300,000 on March 20, 208, respectively.

2. Determination as to each of the claims filed by the plaintiffs A1, A2, A3, A4, A5, A6 A7

A. Whether C is the defendant's representative

Since the plaintiffs asserted that C had obtained the power of representation from the defendant and entered into a subcontract agreement, it is insufficient to recognize that C has obtained the power of representation to enter into a subcontract agreement, etc. from the defendant only with the testimony of each of the items of evidence Nos. 10 and 12, witness F1 and F2, and there is no other evidence to acknowledge this otherwise, the above plaintiffs' assertion is without merit.

B. Whether Article 125 of the Civil Act is responsible for expression representation

1) Summary of the parties’ assertion

The plaintiffs asserted that the defendant should pay the remainder of the construction cost and damages for delay to the plaintiff A1, A2, A3, A4, A5, and A7 in accordance with the expression agency doctrine under Article 125 of the Civil Code, since the defendant allowed C to use the name of "the director of the defendant's Busan Branch C" and allowed the defendant to act as the "director of the defendant's Busan Branch C" and that the defendant should pay the remainder of the construction cost and damages for delay to the plaintiff corporation D and A6.

As to this, the defendant did not have ordered C to use the above name cards, and even if the defendant approved or permitted the use of the name cards, if C is a director of the defendant's Busan branch office, or if the defendant's authority to conclude a contract with the plaintiffs was confirmed, it could be easily known, and since the contract entered into with C is signed with the plaintiff A1, A2, A3, A4, A5, A5, Co., Ltd., and the personal seal of C is affixed to each contract entered into with C, not the defendant's corporate seal, the above plaintiffs paid little attention, so it could be easily known that C did not have the right to represent the defendant, and therefore, the legal principle of expression representation cannot be applied.

2) Determination

A) Apparent representation by the indication of granting of power of representation under Article 125 of the Civil Act may be established when a person, without any direct relation, expresses that he/she has granted the power of representation to a third party in performing a juristic act with a third party on behalf of the principal who has performed the act on behalf of the principal. In addition, the indication of granting of power of representation by the principal does not necessarily mean that the person has the right of representation or the word of representative, but rather it does not necessarily mean that the person has the right of representation or the use of a direct box or name, etc. which can be inferred by social norms, and it can be deemed that there has been an indication of granting of power of representation (see Supreme Court Decision 97Da53762, Jun. 12, 1998).

B) The plaintiff 1, A2, A3, A4, A5, and A7 introduced the plaintiff himself as the director of the Busan branch office of the defendant and the general manager of the field of the construction of the construction of the case. Since C entered into each subcontract contract with the plaintiff 1, A2, A3, A4, A5, and A7, "Seoul Metropolitan City office building 4, (main design representative D, and director of the Busan branch office C" is stated in the column for ordering the contract, "Seoul, office building 4, (main design representative) design director D, and director of the Busan branch office" in the column for the buyer of the goods public supply contract entered into with the corporation, "Seoul, office 4, and (main design representativeD, and director of the Busan branch office" are stated in the name of the defendant 2, the defendant's representative director who entered into the subcontract contract with the defendant 1, the defendant's executive office's overall name and ordered the defendant 3 to accept the fact that the defendant's executive office will use the plaintiff 1 and the director of the Busan branch office."

C) Furthermore, in order to constitute an expression agent under Article 125 of the Civil Act, the other party must be acting in good faith and in office, and if there is any negligence on the other party, the other party cannot assert an expression agent (see Supreme Court Decision 96Da51271, Mar. 25, 1997). Therefore, it shall be deemed that there was an negligence on the part of the other party who did not know that the Plaintiffs did not have

In light of the above facts, the plaintiffs' trade name was stated in the column of each contract signed with C, which is not the defendant's corporate seal, but C's personal seal affixed to the principal. However, if the representative concludes a contract on behalf of the principal, it is sufficient to indicate that the principal is for the principal, and it does not necessarily have to affix his seal to the principal's seal. Rather, in light of the above evidences and evidence Nos. 13 through 18-3, Gap 19, and 20, the whole purport of pleadings as a whole, the defendant's trade name was stated in the safety mother used at the construction site of this case and the safety light, etc., the plaintiff A1, A2, A3, A4, A5, and A7 did not appear at the bottom of the subcontract contract signed with C, and there is no other evidence that the above plaintiffs did not have the right of attorney to use the defendant's safety work rules, good faith performance note, and performance note as well as the fact that the plaintiff's office was prepared by the defendant, as well as the plaintiff's office of this case.

D) Therefore, the defendant has the duty of 16,775,790 won (i.e., 165,00,000 won) for the remaining construction cost of 31,100,000 won for the plaintiff A2 (i.e., 58,300,200 won for 27,200,000 won) for the remaining construction cost of 32,60,000 won for the plaintiff A3 (i.e., 72,60,600,000 won for 40,600,000 won for the remaining construction cost of 18,60,600,000 won for the plaintiff A4,600,000 won for the remaining construction cost of 20,000 won for the plaintiff A5 (i.e., 60, 600,000 won for the remaining construction cost of 360,0000 won for each of the above construction cost of 2060,360

3. Determination as to Plaintiff A8’s claim

A. The gist of the plaintiff A8's assertion

The plaintiff A8 borrowed money from the plaintiff A8 on behalf of the defendant, and the defendant is obligated to pay the plaintiff A8 the amount of 50,000,000,000, which has not yet been repaid to the plaintiff. ② Even if the plaintiff C is not the defendant's representative, since the defendant allowed C to use the name of "the director of the defendant's Busan branch office" and made it an on-site general manager of the defendant, the defendant is obligated to pay the above 50,000,000 and the delay damages in accordance with the representative director's legal principles under Article 125 of the Civil Act or Article 395 of the Commercial Act. ③ Even if it is not a domestic affairs, the defendant is the user of F1 and C, and thus, the defendant is liable to compensate for the damage caused by the tort of F1 and C.

B. Determination

1) Whether C is the defendant's representative

It is insufficient to recognize that C was granted the right of representation to borrow money from the Defendant only with the testimony of each statement of evidence Nos. 10 and 12, witness F1, and F2, and there is no other evidence to acknowledge it. Thus, the Plaintiff’s above assertion is without merit.

2) Whether a person is liable for acting as an expression agent under Article 125 of the Civil Act

The testimony of the witness F2 of the witness who borrowed money from the headquarters that C borrowed money from the headquarters of the Plaintiff A8 is insufficient to recognize the fact that C borrowed money from the Defendant by “agent,” and there is no other evidence to acknowledge it. Rather, according to each description of the evidence No. 9-1 and No. 2, according to the statement of the statement No. 9-2, the borrower stated in the statement of the statement No. 9-1 and No. 2 prepared on August 10, 2008, respectively, can recognize the fact that C is not the Defendant, and this fact shows that the Plaintiff A8 deposited money into the account, not the account in the name of the Defendant, with the account in the name of the Defendant, and it is reasonable to deem that the Plaintiff A8 lent money to the individual, not the Defendant.

Therefore, the above argument of the plaintiff A8 on a different premise is without merit without examining the remainder of the argument.

3) Whether the representative director is liable for the expression under Article 395 of the Commercial Act

However, in order to establish the company's liability due to the act of the representative director pursuant to Article 395 of the Commercial Act, a person who is not the representative director of the company must conduct a transaction by using a name that is recognizable as having the company's power of representation, and as seen above, C can only recognize the fact that he used the name of the defendant's director of the Busan branch office, and it is difficult to view the name of the director of the Busan branch office as a name that can be recognized as having the company's power of representation in appearance

4) Whether the employer is liable under Article 756 of the Civil Act

A) The phrase "in relation to the performance of an employee's business", which is an element for an employer's liability under Article 756 of the Civil Act, means that if an employee's unlawful act objectively appears to be objectively associated with the employee's business activities, performance of duties, or performance of duties without considering the offender's subjective circumstances. Here, whether it is objectively associated with the employee's performance of duties should be determined by considering the degree related to the employee's original duties and tort, and the degree of the employee's occurrence of danger to the employee's damage and the degree of responsibility for failing to take preventive measures (see, e.g., Supreme Court Decisions 98Da39930, Jan. 26, 199; 200Da66119, Mar. 9, 200).

B) As seen earlier, the monetary transaction between the Plaintiff A8 and C is not a juristic act done by the Defendant on behalf of the Defendant, but is merely a personal loan by the Plaintiff, and thus not related to the Defendant’s business. Moreover, the fact that the F1, who was the Defendant’s management director, ordered C to engage in the Defendant’s Busan branch office and use the name cards stated “Defendant’s director C” is insufficient to recognize that F1 committed an unlawful act against the Plaintiff A8, or committed a tort in collusion with C, and there is no other evidence to acknowledge this otherwise, the Plaintiff A8’s above assertion is without merit.

4. Conclusion

그렇다면, 원고 A2, A3, A4, A5, A6, A7의 각 청구는 모두 이유 있어 각 인용하고, 원고 A1, 주식회사 ▣의 각 청구는 모두 위 인정범위 내에서 이유 있어 이를 인용하고 각 나머지 청구는 이유 없어 이를 기각하며, 원고 A8의 청구는 이유 없어 기각하기로 하여 주문과 같이 판결한다.

Chief Judge Park Tae-tae

Judge Lee Dong-dong

Judges' Quota