상사중개에 관한 몇 가지 논의

Abstract

There arises some critical issues with respect to the possible interpretations of Article 93 through Article 100 of the Commercial Act(hereinafter referred to as “CA”) regarding the commercial intermediation widely used nowadays in the numerous commercial transactions like the sales, financing, insurance, maritime transportations, travels, etc. The first issue is as to whether the commercial act prescribed in the Article 93 of CA includes the ancillary commercial act. The second issue is as to how to interpret the intentions of the parties in the absence of explicitly clear intentions agreed upon in the intermediation agreement, and as to what the legislative model was referred in the course of the enactment of intermediation agreement prescribed in the CA, and furthermore as to what the legal nature of the intermediation agreement is. The third issue is as to whether the Article 100(2) of CA would apply to the unilateral consignment. In reviewing the relevant materials and case precedents concerning the above-mentioned issues, I have come to the following conclusions. On the first issue the commercial act in the Article 93 of CA would have to include the ancillary commercial act. On the second issue the intermediation agreement shall be interpreted as the bilateral one in the absence of such clarified intentions in the intermediation agreement, noting that the Korean Commercial Act was enacted with the legislative purpose of prescribing both the unilateral intermediation and the bilateral intermediation, and thus having the unilateral intermediation characterized the special agreement in the CA synonymous with the contract for work, and having the bilateral intermediation characterized the special agreement in the CA synonymous with the delegation. On the last issue the Article 100(2) of CA shall apply to the unilateral consignment as well as the bilateral consignment.