妻가 남편의 名義로 체결한 金錢貸借契約의 效力－계약당사자의 확정과 행위자 － 연구대상판결 : 대법원 2003. 6. 28. 선고 2001다49814 판결 － (Validity of a Loan Contract entered into by a wife in the Name of her Husband ― Commentary on Korean Supreme Court Decision 2001Da49814, June 28, 2003 ―)

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초록

In this commentary the author reviews a case where a wife conspiring with a
third person received a loan from a financial company in her husband’s name and
filed a Keun-mortgage on the husband’s real estate. The unusual aspect of this case
is that the third person pretended to be the husband in receiving the loan. The wife
made the financial company believe the third person was her husband by
submitting a photocopy of her husband’s ID card by sticking the third person’s
photo in place of her husband’s.
Korean Supreme Court ruled that the apparent agency under Article 126 of the
Civil Code can be found when the agent, with the intention to represent, performs
a juristic act that exceeds her authority. It ruled that if a person performs a juristic
act while pretending to be another person, the apparent agency can not be found
unless there exist exceptional circumstances, and supported the ruling of the
original court’s decision that rejected the financial company’s claim against the
husband for the repayment of the loan.
The parties of the loan agreement in question should first be clarified. It should
be noted that the swindlers in the contract were not the third person alone but he
was in collaboration with the wife of the person whose name was signed on the
loan document.
If the wife with the basic agency concerning household affairs, i.e., “daily
household agency”, conducts a juristic action exceeding her authority by disguising the third person as her husband, and if there is a justifiable cause to acknowledge
that the counter party believed the third person to be the husband conducting
rightful actions, the responsibility of the husband should be recognized in order to
protect the bona-fide counter party who believed that the actions were conducted
by the husband himself. This is a logical conclusion in terms of the apparent
agency whose purpose is to protect the bona-fide counter party by recognizing the
responsibility of the principal to a limited extent for the actions of the agent
without proper authority.
However, the ruling at issue did not decide who was the borrower in the loan
agreement in question, and failed to find whether the contract itself was actually
entered into. The Court acknowledged that the agreement was initiated by the wife,
however, it dismissed the apparent agency argument of the plaintiff on the grounds
that the third person had no basic agency, merely focusing on the third person’s
act.
However, where the wife, who is closely related to the principal, fraudulently
filed a mortgage on the husband’s real estate and received loan, and disguised a
third person as her husband as in this case, there is no reason to treat the wife’s
action to be any different from the wife conducting a juristic action in excess of
daily household agency. The Court’s decision denying the responsibility of the
husband for apparent agency in this case cannot be viewed as consistent with its
precedents.

영어초록

In this commentary the author reviews a case where a wife conspiring with a
third person received a loan from a financial company in her husband’s name and
filed a Keun-mortgage on the husband’s real estate. The unusual aspect of this case
is that the third person pretended to be the husband in receiving the loan. The wife
made the financial company believe the third person was her husband by
submitting a photocopy of her husband’s ID card by sticking the third person’s
photo in place of her husband’s.
Korean Supreme Court ruled that the apparent agency under Article 126 of the
Civil Code can be found when the agent, with the intention to represent, performs
a juristic act that exceeds her authority. It ruled that if a person performs a juristic
act while pretending to be another person, the apparent agency can not be found
unless there exist exceptional circumstances, and supported the ruling of the
original court’s decision that rejected the financial company’s claim against the
husband for the repayment of the loan.
The parties of the loan agreement in question should first be clarified. It should
be noted that the swindlers in the contract were not the third person alone but he
was in collaboration with the wife of the person whose name was signed on the
loan document.
If the wife with the basic agency concerning household affairs, i.e., “daily
household agency”, conducts a juristic action exceeding her authority by disguising the third person as her husband, and if there is a justifiable cause to acknowledge
that the counter party believed the third person to be the husband conducting
rightful actions, the responsibility of the husband should be recognized in order to
protect the bona-fide counter party who believed that the actions were conducted
by the husband himself. This is a logical conclusion in terms of the apparent
agency whose purpose is to protect the bona-fide counter party by recognizing the
responsibility of the principal to a limited extent for the actions of the agent
without proper authority.
However, the ruling at issue did not decide who was the borrower in the loan
agreement in question, and failed to find whether the contract itself was actually
entered into. The Court acknowledged that the agreement was initiated by the wife,
however, it dismissed the apparent agency argument of the plaintiff on the grounds
that the third person had no basic agency, merely focusing on the third person’s
act.
However, where the wife, who is closely related to the principal, fraudulently
filed a mortgage on the husband’s real estate and received loan, and disguised a
third person as her husband as in this case, there is no reason to treat the wife’s
action to be any different from the wife conducting a juristic action in excess of
daily household agency. The Court’s decision denying the responsibility of the
husband for apparent agency in this case cannot be viewed as consistent with its
precedents.

참고자료

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