Earticle

초록

영어

A lender of name is responsible for third party, according to several regulations in commercial law and civil law by behaviors of a borrower of name who uses a name from a borrower. With reference to each regulation on its liability, there are a lot of oppositions in its definition and application, because fair distribution of responsibility has to be operated amongst a borrower, lender and the third party and in some way, it contradicts precedents.

First of all, in reference to application of Article 24 in commercial law, a borrower doesn't need to be a merchant in addition to a lender, because corresponding regulations are based on rechtsscheintheorie in discussion on merchant characterristic of interested party. Nextly, in reference to whether implied lending of name can be acceptable, lender accepts a duty to exclude appearance, as a duty of general life to acknowledge implied lending of name, although, there is no other extraneous situation. With reference to adverse criticism on whether lender's business and borrower's business have to be on the same to bring into existence of liability in Article 24 of commercial law, homogeneity of business needs, because this regulation is about appearance that borrower's business seems to be lender's business in opponent's angle. With reference for meaning of misconception by the third party, it is reasonable interpretation that lender can be escaped responsibility only when there is an evil intention or heavy mistake regarding it.

In civil lawful acts by name lending which application of commercial law is excluded, some views seem to be a problem of authoritative procuration, however, it is also reasonable to recognize liability of scheinvollmacht happens, according to Article 125 in civil law which has the same meaning with Article 24 of commercial law.

In case that there acts of promissory note concerning business of borrower, with reference to whether Article 24 in commercial law will be applied, corresponding regulations have to be applied, because necessity to protect third party who trusts in appearance of business. On the other hands, in case that promissory note acts by borrower happen themselves without relation with business, there are varied arguments, but borrower has to be responsible for note, because it can be recognized as borrower's own acts as well in this case and lender acknowledges to have joint liability regarding it.

With reference to arguments whether Article 24 in commercial law can be applied to misfeasance of borrower, in case of private misfeasance of borrower, lender doesn't have any liability, but in case of misfeasance related to business trade of borrower, lender acknowledges responsibility considerating that external elements of name lending and trade, and misconception elements of third party are adequate. In the next breath, in case that uses are recognized in relation of lender and borrower, lender has to be responsible for its uses, according to Article 756 in civil law.

목차

I. 들어가며
 II. 영업상 거래행위와 명의대여자의 책임
 III. 민사상 법률행위와 명의대여자의 책임
 IV. 어음행위와 명의대여자의 책임
 V. 불법행위와 명의대여자의 책임
 VI. 결론
 참고문헌
 Abstract

키워드

저자

• 김성진 [ Kim, Seong-Jin | 전북대학교 법과대학 조교수 ]

참고문헌

발행기관

간행물

표지보기 관심저널 등록

• 간행물명

  동북아법연구 [Northeast Asian law journal]

• 간기

  연3회

• pISSN

  1976-5037

• 수록기간

  2007~2026

• 등재여부

  KCI 등재

• 십진분류

  KDC 369 DDC 341