2011Na3002 Payments for Goods

Kim 00

Jinju City

Attorney Cho Chang-chul, Counsel for the defendant-appellant

OO

Daegu Western-gu

Attorney Kim Young-deok, Counsel for the plaintiff-appellant

Changwon District Court Decision 2010Kadan5218 Decided February 17, 2011

April 18, 2012

May 2, 2012

1. The plaintiff's appeal is dismissed.

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

Of the judgment of the court of first instance, the part against the defendant shall be revoked. The defendant shall jointly and severally pay to the plaintiff 21,324,900 won and the amount calculated by the ratio of 6% per annum from March 5, 2010 to the service date of the copy of the application for correction of the purport of the appeal of this case, and 20% per annum from the next day to the day of full payment (the plaintiff reduced the claim of the appeal in the trial).

1. The following facts are not disputed between the parties.

A. The plaintiff is engaged in the manufacture and sale of direct substances, etc. in the trade name of Jinju-si ○○dong*-** in * ‘○○'.

B. The Plaintiff supplied direct goods to ○○○, who is engaged in retail business from April 2005 to December 30, 2008 (hereinafter “the instant direct goods transaction”), and the direct goods price of KRW 21,324,90 (hereinafter “the instant direct goods price”) remains without being paid.

2. Judgment on the main argument

A. The plaintiff's assertion

Since the Defendant, in collaboration with the Chapter 00, was supplied with the direct goods from the Plaintiff while running a package retail business, the Defendant is jointly and severally liable with the Chapter ○○ and the Plaintiff to pay the instant direct goods price and the damages for delay.

B. Determination

1) The following facts are acknowledged according to Gap evidence Nos. 3, 4, 6, and 7 (including each number, if there is no separate number indication; hereinafter the same shall apply), Eul evidence Nos. 3, 4, 6, 9, 10, and 11, Eul evidence Nos. 7-2, 8-2, Eul evidence Nos. 7-2, 8-B, Eul evidence Nos. 1 and 2, testimony of Gangwon-gu, 2, and 3 heading in Daegu-gu, the fact inquiry results, and the whole purport of arguments.

On January 1, 1997, the Defendant, as the wife of ○○○, has been engaged in horse retail business in Daegu Jung-gu ○○○dong******* district** ○○ market** south ***.

At the time of transaction with the ○○○, the Plaintiff received the name of “○○○○○○○○○○” from the Defendant and the chi○○○○ mobile phone number together, and there is also the name that the Defendant and the chi○○○○’s mobile phone number are indicated. The Plaintiff’s home delivery of a part of the direct delivery to the ○○○○○ upon request.

On the other hand, after completing the business registration with the trade name "○○ Commercial Association on July 4, 1990, ○○○", ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ on July 25, 199, and

The conclusion of the contract on the direct sales of this case and the receipt of the direct sales price are only between the Plaintiff and the ○○○○○, and the trade name of the ○○○○○ is written in the transaction specification table delivered by the Plaintiff to the ○○○○○.

The defendant operated the "○○○ Group" and has been supplied with materials necessary for the business by other manufacturers of direct materials who are not the plaintiff.

2) In full view of the relationship between the above sources, the Defendant, and the ○○○○, and the process of the instant direct sales, and the process of receiving and receiving direct payments, the Plaintiff should be deemed to have engaged in the instant direct sales and the instant direct sales with the trade name, i.e., “O., direct sales.” Even if the Plaintiff received from ○○○○, a name stating the trade name of “○○○ Group,” and the Defendant’s contact address, or even if the Defendant received part of the Plaintiff’s direct sales on behalf of ○○○○, it is difficult to view that the Defendant, who used a separate trade name in a place separate from ○○○, engaged in the instant direct sales business jointly with ○○○.

In addition, it is not sufficient to recognize the fact that the Defendant was supplied with the material from the Plaintiff while running the business jointly with the ○○○○, and there is no other evidence to acknowledge it.

Therefore, the plaintiff's above assertion is without merit.

3. Judgment on the conjunctive assertion

A. The plaintiff's assertion

The Defendant’s use of the trade name of “00 weeks” and the Defendant’s contact address, such as the use of the name of “100 weeks” and “10 weeks group, etc., or by allowing the Plaintiff to mislead the Plaintiff into 00 business operators of “00 weeks group.” Therefore, the Defendant is jointly and severally liable with the ○○○○○○ pursuant to Article 24 of the Commercial Act.

B. Determination

Article 24 of the Commercial Act provides that "a person who has allowed another person to run a business using his name or trade name shall be jointly and severally liable to pay to the third person who has transacted his/her business by mistake as the owner of the business."

Even according to the Plaintiff’s assertion, the Plaintiff traded ○○○ with the opposite contractual party, so there is no room for establishing the Defendant’s liability for the nominal lender under Article 24 of the Commercial Act.

Even if the plaintiff's assertion was silentd or allowed by the defendant to conduct a business using the trade name of "○○○○○ Group" and the plaintiff misleads the defendant as the opposite contractual party, it is not sufficient to recognize that the plaintiff misleads the defendant as the opposite contractual party, considering that the conclusion of a contract for direct real transactions and the receipt and payment of the direct real price, as seen earlier, were only between the plaintiff and the ○○○○○○○○○○○○○○○○○○○○○○○○○○, and the trade statements issued by the plaintiff to the ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○, and there is no other evidence to recognize otherwise.

Therefore, the plaintiff's above assertion is without merit.

4. Conclusion

Therefore, the plaintiff's claim shall be dismissed as it is without merit. The judgment of the court of first instance is justified as the conclusion is, and it is so decided as per Disposition by the plaintiff's appeal.

The presiding judge and the deputy judge;

Judges Lee Jae-hwan

Judges Kim Gin-ju