*형* 스토어

*형*

개인인증

팔로워0 팔로우

소개

등록된 소개글이 없습니다.

전문분야 등록된 전문분야가 없습니다.

판매자 정보

학교정보

입력된 정보가 없습니다.

직장정보

입력된 정보가 없습니다.

자격증

입력된 정보가 없습니다.

판매지수

판매중 자료수

15개
전체 판매량

148개
최근 3개월 판매량

0개
자료후기 점수

평균B
자료문의 응답률

-

전체자료 28개

사자와 대리인의 구별 (영문)

* 사자와 대리인의 구별 (Difference between a Messenger and an Agent)1. Meaning of messengerMessenger is a person who simply cooperates by delivering the legal intentions of the principal or expressing the intent of the principal to the other party.2. Difference between an AgentThe main difference is that in messenger, the principal decides the intents and contents to a contract and messenger is subordinated to the principal. But in Agency, it is the agent who decides the intents and contents to a contract and is independent to the principal.3. In case B is a messenger of CIn this case, ① C already has made a decision that he will be a guarantor to B's debts ② and only told B to deliver the documents to A. So it seems that C did not award B with the right of representation but instead only appointed him messenger.4. Legal relations between C and DIf a messenger delivers an intent that is different from the real intent of the principal, that expressed intent by the messenger originally should have no effect. But in order to secure the safety of transactions, ①Art 109 will be applied if the messenger was in good faith or ② if the messenger was in bad faith, it should be seen as a situation like 무권대리(Agent without the power of attorney).In this case, B is a bad faith messenger so guarantee contract between C and D is void just like it would be in the case of an agent without the power of attorney. But there is a dispute whether as to D can put forward 표현대리(Ostensible authority) under Art 126 and make the contract binding upon C. Korea Supreme Court allows the application of Art 126 to a messenger if he seemed to have some sort of authority and the counterpart believed and had a good reason to believe that he is of authority. It seems proper to allow the application of Ostensible authority even to a messenger since it is difficult to tell the difference between a messenger and an agent and the need to protect a good faith third party is also needed.5. Legal relations between B and CC can ask B for the loss he had suffered due to B's wrong doing (Tort). And if we can see that there was a contract of mandate, C can also argue that B is in breach and therefore ask for compensation.

법학| 2013.06.24| 1페이지| 무료| 조회(185)

고대, 고려대, 민법, 대리인, 대리, 사자, law of obligation, 로블..

미리보기

닫기
Abuse of agent power (대리권남용)

* Abuse of agent's power (대리권남용)1. Whether A is an agent without the power of attorney (무권대리인지 여부)Since A did not have the authority to open a 정기예금, 예금계약 in this case is void. But the counterpart may rely on 'ostensible authority' which will then make the contract binding upon the principal.2. Whether Art 126 will be applied (표현대리 성립여부)(1) Requirements of Art 126In order for the counterpart who made a contract with an agent without the power of attorney to rely on Art 126 and make use of "Ostensible authority" to make the contract binding upon the principal, ① the agent should have had at least some basic power of attorney, ② but the agent concluding a contract which is beyond the limits of such basic power and ③ the counterpart having a good reason to believe that the agent actually had the power to conclude such contract.3. Abuse of agent's power theory (대리권남용의 성립여부)(1) Meaning of "Abuse of agent's power""Abuse of agent's power theory" is a theory which is to make a formally valid contract ineffective upon the principal due to the ill will of the agent, that is, ① Even though the agent performed within the formal powers of attorney, ② the agent was intending to perform not to benefit the principal but instead was doing so in order to benefit others or the agent himself and ③ the counterpart is not worthy of being protected, the principal may deny the effect of the agent's performance.(2) The scope of the counterpart that is worth of being protected.Since the principal may not make use of "Abuse of agent's power theory" in case there is a need to protect the counterpart, the scope of the counterpart becomes an issue. The court usually interprets the scope as "the counterpart is not protected if he knew or was negligent in not knowing that the agent was abusing his power" analogically applying Art 107 ① proviso.But there is also a supreme court case which sees the scope as "the counterpart is not protected if he knew or was 'grossly negligent' in not knowing that the agent was abusing his power." [86Daka1522]. Since it is the principal, not the counterpart who should take care of the agent, the latter approach seems more reasonable.- 선의,경과실 보호 / 악의,중과실 보호 X

법학| 2013.06.24| 1페이지| 무료| 조회(109)

고대, 고려대, 민법, law of obligation, 대리권남용, 로블리, 신창..

미리보기

닫기
법인 이사의 대표권 제한

법인 이사의 대표권 제한1. IssueTo determine whether director B's juristic act can be seen as an act of the corporation's and make a valid contract between the corporation and C, we need to focus on1) whether the trade contract was made within the scope of business of the corporation recognized by the MOI (Art34),2) if it was made within the scope of business of the corporation, the meaning of the clause stating that "In order for the director to dispose of the corporation's assets there has to be an approval from the BOD", and finally3) Effects of not having registered the limitations to the representative's powers, regarding C who is in bad faith(who knows that there was such a restriction in the MOI) (Art60).2. Whether selling the land in order to secure funds for business falls into the scope of business of the corporation.It is my personal opinion that we no longer need to check this stage because of the following reasons, ①the purpose of using the principle Ultra Vires was to "Protect the cof Korea still applies this principle, I will check.A corporation becomes a legal holder of rights and obligations within the scope of business recognized by its MOI (Art34). Since selling the asset of the corporation was intended to secure funds for the business of the corporation, it should be seen to fall into the scope of business of the corporation.It is also the Court's view that "whether a transaction falls within the corporation's scope of business shall be determined by the objective nature of the transaction. The subjective intention of the particular author of the transaction is irrelevant."- Supreme Court 1987.9.8, 86다카13493. Whether the clause in the MOI is an external restriction to the powers of the representative.It is generally seen that "Requiring an approval of the BOD" has an external effect restricting the representative's powers. The Court also stated that "If there is a clause in the MOI stating that there should be an approval of the BOD for the representative the representative's powers(1) IssueSince director B's act is an act of untitled representation, corporation may have a chance to argue that they are not responsible for that juristic act of B. Thus, we need to look into Art 60, especially the meaning of "the third party".(2) Conflicts- Only means "Good faith" third parties.- Includes "Bad faith" third parties as well.Since Art 60 does not explicitly limit third parties to "Good faith" third parties unlike other Articles in the Civil Code, and taking into account the need for simple solution regarding registration system, we should see third party in Art 60 to include "Bad faith" parties.. The Court also stated that "Unless registered, the corporation can not oppose even to Bad-faith third parties." - Supreme Court 1992.2.14, 91다24564* Abuse of power - 논의 된다면 여기에 위치5. ConclusionSo the trade contract in the case was made within the scope of business of the corporation and since the corporation failed to register the limits of its represennection with execution of its business". Whether the loss caused in connection with execution of the corporation" shall be determined by looking at the objective nature of the transaction or the conduct which caused the loss(외관이론). The subjective motive or purpose of the director in question is irrelevant except where the victim was also aware, or grossly negligent in not knowing, that the director was engaged in the conduct for a purpose which is unrelated to the corporation's business (2002다27088).(2) Legal effect of Art35The corporation shall be held liable for the loss along with the representative himself(부진정연대채무). So the suffered counterparty can seek compensation from either side. If the corporation compensates, the corporation can seek indemnity from the representative who fulfilled the requirements of Art750.(3) Interim findingsThe main difference between contractual liability and Tort liability is whether the corporation can argue "과실상계".7. Unjust enrichment (Art 741)(1) ReqW from the foundation. But they may not ask for interests since Mr Lee was in good faith which makes the foundation in good faith.(2) Whether Art746 can be appliedIn order for Art746 to be applied, the payment must be made casually to illegal origin. There is a dispute regarding the meaning of "illegal" in Art746. Taking into consideration that its purpose it to refuse aid of the law to those who try to recover by saying that they have done something against the law, the meaning of "illegal" in Art 746 should be seen the same as illegal in Art103. Therefore, Art746 will not be applicable in this case.(3) Interim findingsCorporation benefits the moment the money is transferred to the corporation bank account. The fact that its representative later withdrew the money from the account does not effect the corporation from being unjustly enriched (2001다66369).8. Relationship between Tort and Unjust enrichment.The suffered can choose to exercise between Trot remedy or Unjust enrichment remed

법학| 2013.06.14| 4페이지| 무료| 조회(120)

고대, 고려대, 민법, 민법총칙, 민총, law of obligation, 로블리, 신창섭

미리보기

닫기
미성년자의 신용카드 이용계약 해제

Law of Obligation 1 - 사례 9"미성년자의 신용카드이용계약"Ⅰ. Question 11. IssueA minor is able to rescind his juristic act if it was made without the approval from his/her legal representative(in this case it will be 甲's parents)(Art 5 ②). So we need to look 1) if there was any 'explicit or implied approval of the parents' to 甲's concluding a credit card usage contract with A, which will make it irrevocable(Art 6). And we also need to discuss 2) whether 갑's signing the contract, using his mother's signature constitutes 'fraud' mentioned in Art 17, which will eliminate 갑's right to rescind. And finally, we should discuss 3) the amount 갑 has to return in case rescission is made possible.2. Rescission of a "Credit card usage contract"(1) Whether there was a 'implied approval' of the parents.1) Disposal of property within the limits of approvalSince minors are fully able to dispose of their property within certain limits in case they have been permitted to do so(Art 6), we need to see if 갑's concluding a ed. Even if A did mis-believe, it should not be seen causal.(3) Interim findingsThe Credit card usage contract can not be considered to fall into the boundaries of Art 6. And even thought 갑 forged his mother's signature, since it cannot be seen to have successfully deceived A, 갑 still has the right to rescind. Therefore, 갑 is able to rescind the contract.3. The right and amount of money A can demand from 갑 if the contract is rescinded.(1) Retroactive effect by rescission of a contract.According to Art 141, if B(갑's parent) rescinds the contract, it has a retroactive effect. In such case, the minor is to return the benefits he had from the contract and the amount he has to return is limited to the extent that is existent at the time of rescission regardless of whether he was in good faith or bad faith(Art 141 단서).(2) What 갑 has to return1) Opinions of the CourtThe court ruled that "if a credit card usage contract is rescinded by the minor, what he has to return by unjust enrichment is t property within the limits of approvalSince minors are fully able to dispose of their property within certain limits in case they have been permitted to do so(Art 6), we need to see if 갑's concluding a sales contract with 을 and 병 falls into this line of behavior. And since parent's approval can be made impliedly, we need to consider ①the minor's income and ②the contents of the contract.2) In this case갑, at the time of concluding a contract with 을 and 병, was almost at the age of 20. And he had his parents permission to do part-time job which made him 300,000원 per month. So this sum of money can be seen to have been approved by his parents to do whatever he desires. So buying a 100,000원 cloth can be seen to fall into his parent's implied approval. Thus, 갑 is unable to rescind the contract made with 을.On the otherhand, 갑 bought a laptop from 병 which cost 2,000,000원 on two installments. This means that 갑 has to pay 병 1,000,000원 per month, which is certainly above his income. So we can safrom A, the credit card company.Ⅲ. Question 31. IncompetenceWe need to discuss whether 갑, at the time of concluding a contract with 정, was in an incompetent situation which will, according to the court, be void. Since 갑 was totally drunk, we can assume that he had no idea to what he was doing. So we can say that 갑 was in an incompetent situation, making the contract with 정 void.2. MinoritySince 갑 had no approval from his parents to sell his mp3, contract made with 정 can be rescinded.3. Whether you can rescind a void juristic act.Voidance and Rescission are not entirely different concepts. Instead, they are the consequences of legislation. And even a void act is not entirely "0". There is still some act that can be rescinded.4. B's right to rescind the contract.Since B is 갑‘s parent, he has the right to rescind the contract made between 갑 and 정(Art 140). So B's rescission is validly made.Ⅳ. Question 41. 갑 and 무Since minor's rescission is absolute, 갑 can still rescind the contract made wiffect. So both parties have obligations to make the other party be in a situation previous to the contract being formed. So they need to retrun everything they have received from the contract. But according to 단서 of Art 141, in order to protect the minor, a minor need only return what is currently left of the benefit.(2) what 갑 has to returnBut it is our court's opinion that 'as far as money is concerned, you benefit the moment you receive the money' and therefore you have to return the total amount of money you have received regardless of whether you have spent it or not.So in this case, 갑 has to return 300,000 to 정.(3) what 정 has to returnWhat 정 has to return is determined by Art 748. At the time of concluding a contract with 갑, 정 would have realized that 갑 was totally drunk and therefore was unable to logically consider the contract. So 정 can be seen to have been in bad faith which will make him to return not only 300,000 but the legal interest as well.But he need not return the mar

법학| 2013.06.14| 6페이지| 무료| 조회(135)

고대, 고려대, 민법, 민법총칙, 민총, law of obligation, 로블리, 신창섭

미리보기

닫기
미성년자의 법률행위 취소

1. IssuesRay, as a minor, can successfully rescind the contract(Art 5) and by relying on the ownership of the bike or unjust enrichment, can ask Ms. Kang to return the bike. As a precondition, we need to see ①whether this contract requires approval of Ray`s parents in order to be valid and ②whether Ray`s hiding the fact of him being <중 략>Ms. Kang cannot seek Tort as a remedy to be compensated because Ray`s rescission is not wrongful. Ray has the right to rescind. If we allow Ms. Kang to use Tort in such circumstances, the objective of civil law to protect the minors will be lost.

법학| 2013.06.14| 5페이지| 무료| 조회(118)

고대, 고려대, 민법, 민법총칙, 민총, law of obligation, 로블리, 신창섭

미리보기

닫기