계약의 주관적 합치와 당사자 확정
Agreement upon Who Be His or Her Partner and Identification of Partners
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In this paper a new approach is attempted for the identification of partners of contracts. It is to try to connect the arguments about the question of who should be partners and the subject of identifying partners. The established principle that the agreement upon who should be his/her partner is necessary for the formation of the contract should be taken into consideration for solving the question of between whom the contract has been concluded. The agreement upon who should be his/her partner is found in the coincidence between two factors: the recognition of the other partner and the intent to be the partner for himself/herself. The person whom you recognized was your partner should be the person who had intent to be your partner. The creation of a contract is a precondition for the arguments in this paper. Therefore the cases related with this paper could be categorized by whether a nominal person on the contract be the same person who attempted actually to conclude the contract or not. When the former is not the latter, such cases could be divide into the cases in which the latter had intention for the other person as a representative act and the cases in which the latter had intent to conclude his/her own contract. It should be tried differentially for you to search for the two factors referred to above in each case. The contract is formed between the two people who have the recognition of the other partner and the intent to be the partner. It should be noted that the creation of a contract permits you to infer that the two people have the two factors for each other. This means that he or she who tries to turn such assumption over, that is, alleges the formation of contract between the other people should establish the two factors between them. The fact that the interest from the alleged contract is not for the person on a contract but for the other person is strong backing for his or her establishment. Under the theories as above-mentioned, it is possible to critically analyze the judgement 2012 Da 1559 announced by Korean Supreme Court. According to this analysis, the judgement by the court of appeals in that case might be more appropriate than the judgement by the Supreme Court which had overruled the decision by its appeal court.
Abstract
In this paper a new approach is attempted for the identification of partners of contracts. It is to try to connect the arguments about the question of who should be partners and the subject of identifying partners. The established principle that the agreement upon who should be his/her partner is necessary for the formation of the contract should be taken into consideration for solving the question of between whom the contract has been concluded. The agreement upon who should be his/her partner is found in the coincidence between two factors: the recognition of the other partner and the intent to be the partner for himself/herself. The person whom you recognized was your partner should be the person who had intent to be your partner. The creation of a contract is a precondition for the arguments in this paper. Therefore the cases related with this paper could be categorized by whether a nominal person on the contract be the same person who attempted actually to conclude the contract or not. When the former is not the latter, such cases could be divide into the cases in which the latter had intention for the other person as a representative act and the cases in which the latter had intent to conclude his/her own contract. It should be tried differentially for you to search for the two factors referred to above in each case. The contract is formed between the two people who have the recognition of the other partner and the intent to be the partner. It should be noted that the creation of a contract permits you to infer that the two people have the two factors for each other. This means that he or she who tries to turn such assumption over, that is, alleges the formation of contract between the other people should establish the two factors between them. The fact that the interest from the alleged contract is not for the person on a contract but for the other person is strong backing for his or her establishment. Under the theories as above-mentioned, it is possible to critically analyze the judgement 2012 Da 1559 announced by Korean Supreme Court. According to this analysis, the judgement by the court of appeals in that case might be more appropriate than the judgement by the Supreme Court which had overruled the decision by its appeal court.
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