부분적 포괄대리권을 가진 사용인으로 오인될 만한 유사한 명칭을 사용한 사용인에 대한 상법 제14조의 유추적용가능성 검토 -대법원 2007.8.23. 선고 2007다23425 판결에 대한 평석- (Analogical Application of Article 14 of the Korean Commercial Code)

서지정보

· 발행기관 : 한국상사판례학회
· 수록지 정보 : 상사판례연구 / 21권 / 3호 / 33 ~ 56페이지
· 저자명 : 권재열

초록

According to Article 14 of the Korean Commercial Code, an employee who has been entrusted by the proprietor of the commercial establishment or his manager with certain branches of business or specified matters relating to business may effect all acts other than judicial acts. The Korean Commercial Code makes his power standardized in order to promote the safety in commercial transactions. It is possible to limit his power contractually, however, an limitation on his power can be asserted as against a third party only if he knew or ought to have known thereof. The name of the person holding delegated authority does not have to be entered in the Commercial Register.
If there is an employee who has been given a title of a middle class manager of certain branches of business or such other person as has similar title, shall he be deemed to have the same authority as that of a middle class manager of certain branches of business? The Korean Commercial Code does not provide any provision which deals with the authority of the above-mentioned employee. Based on several reasons, the recent Korean Supreme Court Decision states that articles of the Korean Civil Code regarding apparent agency should be applied to the authority of the above-mentioned employee. This Study reviews the reasons presented by the Court, puts forward an argument against them, and offers a suggestion that Article 14 of the Korean Commercial Code, which regulates the relationship between an apparent manager and his appointer, should be applied analogically to the authority of the above-mentioned employee.

영어초록

According to Article 14 of the Korean Commercial Code, an employee who has been entrusted by the proprietor of the commercial establishment or his manager with certain branches of business or specified matters relating to business may effect all acts other than judicial acts. The Korean Commercial Code makes his power standardized in order to promote the safety in commercial transactions. It is possible to limit his power contractually, however, an limitation on his power can be asserted as against a third party only if he knew or ought to have known thereof. The name of the person holding delegated authority does not have to be entered in the Commercial Register.
If there is an employee who has been given a title of a middle class manager of certain branches of business or such other person as has similar title, shall he be deemed to have the same authority as that of a middle class manager of certain branches of business? The Korean Commercial Code does not provide any provision which deals with the authority of the above-mentioned employee. Based on several reasons, the recent Korean Supreme Court Decision states that articles of the Korean Civil Code regarding apparent agency should be applied to the authority of the above-mentioned employee. This Study reviews the reasons presented by the Court, puts forward an argument against them, and offers a suggestion that Article 14 of the Korean Commercial Code, which regulates the relationship between an apparent manager and his appointer, should be applied analogically to the authority of the above-mentioned employee.

참고자료

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