無權代理人 責任의 根據에 관한 試論

• 영문명: A Study on the Ground of Unauthorized Agent’s Responsibility
• 발행기관: 한국민사법학회
• 저자명: 정상현(Jung, Sang Hyun)
• 간행물 정보: 『민사법학』제63-1호, 3~38쪽, 전체 36쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2013.06.30

영문 초록

An agent who purports to make a contract for principal, knowing that he has no authority to do so, is liable to the other party, even if he believed that the principal would ratify. The Article 135 of the Korean Civil Code prescribes in the 1st Sentence that if a person who has made a contract as an agent of another can neither prove his authority nor get the principal to ratify the contract, he shall be liable to the other party, at the latter’s option, either for the performance of the contract or for the compensation to damages, and in the 2nd Sentence that the provisions the preceding paragraph shall not apply if the other party was aware, or should have been aware, that such person had no authority of representation, or if the person who made the contract as an agent had no capacity for entering into such contract. This article has followed the Article 179 of the German Civil Code and Article 117 of the Japanese Civil Code in prescribing the responsibility for the performance of the contract or for compensation to damages. If the other party could have obtained full satisfaction from the principal had the contract been binding on him, the unauthorized agent is liable to the same extent. In general, legal scholars explain that the ground of agent’s responsibility is for the sake of the protection of third party’s reliance, transaction safety and confidence of agent system. They also insist that agent’s responsibility is no-fault liability providing by law. But there are several questions as follows in this explanation. Why is the agent liable to the same extent with principal, despite of having no authority? Why is the agent liable to the performance of the contract, although the contract between the unauthorized agent and the other party is void? The aggravation of agent’s responsibility according to the general explanation is one of the fictional thought, therefore this explanation take an other run. I think that the ground of agent’s responsibility have to be found in his intention, therefore I suggest ‘the theory of implied warranty’ as a ground for that responsibility in this paper. If the agent has not aware his no authority, he is liable to the other party for his intention of warranty to the authority of representation. If the agent has aware his no authority, he is liable for his intention of warranty to the principal’s ratification. The agent is in such circumstances liable for breach of an implied warranty that he has the authority or ratification which he purports to have. Of course, this suggestion is not new viewpoint at all, having no originality. A German legal scholar, Windscheid had already insisted on ‘the theory of promise implied warranty’ to explain the Article 125 of the first Draft of the German Civil Code. The general explanation of the preceding part was insisted by Hupka, a German legal scholar, to explain the Article 179 of the German Civil Code. The insistence of Hupka is introduced by Hatoyama, a Japanese legal scholar, and generalized in Japan. The most substantial question is that unauthorized agent’s responsibility for the performance of the contract is prescribed in the Article 135 of the Korean Civil Code. This is the cause of aggravation of agent’s responsibility and appearance of general explanation. Therefore, I suggest the revision of Article 135. The 1st Sentence : if a person who has made a contract as an agent of another can neither prove his authority nor get the principal to ratify the contract, he shall be liable to the other party for compensation to damages. The 2nd Sentence : if the agent neither aware his no authority nor has fault to do, he shall be liable for compensation to damages suffered by the other party who relied upon the authority.

목차

Ⅰ. 서 설

Ⅱ. 무권대리인 책임의 법적 성격과 근거에 대한 논의

Ⅲ. 무권대리인 책임의 근거에 대한 새로운 해석론

Ⅳ. 무권대리인 책임의 내용 검토

Ⅴ. 결 어

참고문헌

키워드

무권대리 무과실책임 법정책임 표시책임 신뢰책임 위험인수책임 위험귀속 언표 계약체결상 과실책임 묵시적 보증약속 이행이익 신뢰이익 타인권리매매 unauthorized agent principal authority of representation third party’s reliance transaction safety confidence of agent system no-fault liability fictional thought the theory of implied warranty ratification