權限을 넘은 表見代理에 있어서 本人責任에 대한 歸責要素의 判斷

Abstract

Apparent agency system is significant in that the other party who transacted with the person called an agent is protected to maintain the reliance on the system and to enhance the security of transactions. Previously the great part of jurists and judicial precedents showed interpretations faithful to such significance, in particular in cases of apparent agency exceeding authority. In other words, the great part of jurists and judicial precedents interpret toward mitigation or expansion of criteria of recognition of 'the rights of agency' as the requisite for existence of apparent agency. As above-mentioned, the rights of agency and the action exceeding the authority of apparent agent should not be of the same sort, and the eligibility as the rights of agency is not negated even though the rights of agency is the rights of representation of an action of the public law. The interpretation in which the eligibility of the rights of agency as an requirement of apparent agency exceeding authority is widely recognized can protect the profits of the other party but is insufficient to protect those of the principal. Therefore, the role of the protection of the principal cannot be expected from the requirement of the rights of agency, and it should be considered in another requirement of apparent agency exceeding authority, or ‘existence of the justified reason.' On the existence of the justified reason, the great part of jurists and judicial precedents believe the agent had the rights of agency by the other party even on overstepping in question, and understand that the belief is identical with no-fault, or liability without fault. And existence of the justified reason is judged on the assumption of objective conditions seen from the other party in the transaction. Therefore, when existence of the justified reason is judged from subjective observations as in the cases of the great part of jurists and judicial precedents, the conditions of the principal that may not be judged subjectively including, for instance, the apparent agency bestowed of the rights of agency forged or stole the principal's seal or registration documents for embezzlement are difficult to consider in the judgment of justified reason. Although apparent agency is essentially agency without authority, the principal has to have the effects identical from agency with authority. Therefore, under apparent agency the principal cannot reject the performance requiring of the other party and should be burdened with responsibility of performance. Nevertheless, the great part of jurists and judicial precedents have discussed apparent agency just as a system for protecting the other party, not focusing on the protection of the principal's profit. Such tendency has been considerably criticized, and recently some jurists seek to the balance between dynamic and static profit by limiting the scope of recognition of the protection of the other party by self-responsibility or self-responsibility factors of the principal. As above-mentioned, when existence of the justified reason is understood as the liability without fault of the other party, it may be impossible to consider the conditions of the principal, or self-responsibility factors in the decision of existence of the justified reason. However, when existence of the justified reason and the liability without fault of the other party are regarded as separate requirements for each other, they can be considered in the decision of existence of the justified reason. In this context, the intervention of the static profit of the principal and the dynamic profit of the other party can be obtained from the existence of the justified reason with the function of general provisions.