주선에 있어서 위탁자에의 권리귀속을 의제하는 상법 제103조의 법리구성 및 입법효과

Abstract

Unlike most other legislations except for German and Japan and so on, Korean Commercial Act(herein after ‘KCA’) provides the intermediation such as commission agency apart from agency, brokerage, and trust(KCA §46-12). A commission agent is a person who makes it business to effect sales and purchases of goods or of valuable instruments in his own name for the account of other person(KCA §101). Comparing with others, the distinct feature of commission agency is that ‘A’ person takes benefit from the transaction which is performed by another ‘B’ person in the name of ‘B’. By the means of intermediation, the ownership of right consigned is deemed to belong to the principal so far as the principal and the commission agent or the principal and the commission agent’s creditor are concerned(KCA §103), irrespective of the transfer of right from the commission agent to the principal. KCA §103 is an exceptional measure to KCA §102 which provides that the commission agent directly acquires rights and incurs obligation with regard to the other party of the transaction, and to the general principle that the transfer procedure of rights is required for acquiring rights under Civil Act. This paper ranges over the topics related to the legal logic set-up, and actual functions of KCA §103, and stresses the necessity of protecting the commission agent’s creditor in good faith who has fallen into the sacrificial lamb under KCA §103.