商事代理에 관한 연구 -상법 제 48조의 해석론을 중심으로 -

Abstract

This Article examines the doctrine of the undisclosed principal in Korean Commercial Law. In Civil Law the agent must disclose the principal, if he wants his act affect the principal(Sec.114). When he does not disclose the principal, his act affects only him(Sec.115). However, the Commercial Law adopts the opposite rule(Sec.48). As a result, many scholars has disputed the reasonableness of the sec.48 of the Commercial Law. They argue that the Commercial Law has adopted the same rule as the Civil Law, except that who burdens the proof. However, the writer thinks that the doctrine of the undisclosed principal in Commercial Law is reasonable, and suggests to interpret the sec.48 of the Commercial Law under this pre-condition. The meaning of sec.48 is to adopt the doctrine of the undisclosed principal in opposite to the doctrine of the disclosed principal in Civil Law. The reason is, (1) there are differences between the words in sec.114 & 115 of the Civil Law and the words in sec.48 of the Commercial Law, and (2) there are substantial differences in life relations both laws regulate. The writer shows his support to the prevalent view(view 1). But the view 1 has a weak point in protecting the interests of the third who believes the agent as his partner. In this regard, the write suggests to interpret the proviso clause of sec. 48 in a reasonable way. The proviso's intention is to protect the interests of the third who does business with the agent. So, the writer suggests to interpret the proviso to protect both the third who believes the agent as a debtor, and the third who believes the agent as a creditor.