명의차용자의 불법행위와 상법 제24조의 적용 문제 － 명의대여자의 사용자책임을 포함하여－

Abstract

This paper deals with the legal issue of whether according to the sec. 24 of the Korean Commercial Code(hereafter “KCC”) the nominal business proprietor should be liable for the real business proprietor’s tort against the third party. The court decided that the nominal business proprietor is not so, on the ground that there is no causal relationship between the third party’s reliance on the apparent ownership and the loss caused by the real business proprietor’s tort. Some academics hold the same position as the court decision, while there is a strong differing opinion that the sec. 24 of the KCC should be applicable to the real business proprietor’s contractual tort against the third party. The latter’s view confirms to Japanese court decisions and dominant academical view which argue that as far as contractual tort is concerned there is a sufficient causal relationship between the third party’s reliance on the apparent ownership and the loss caused by the real business proprietor’s tort. It is true that there is such a causal relationship between them. However, that the nominal business proprietor is liable for the real business proprietor’s tort according to the sec. 24 of the KCC means that the former is liable for the latter’s tort even when the former does not have supervisory responsibility for the latter. This contradicts with one of the principles of the civil law that one should be liable for another’s tort only when the former has supervisory responsibility for the latter. It is suggested that the nominal business proprietor should liable for the real business proprietor’s tort against the third party according to the sec. 756 of the Korean Civil Code instead of the sec. 24 of the KCC. The sec. 756 of the Korean Civil Code prescribes that the person who has supervisory responsibility for another person should be liable for the latter’s tort against third party. One of the requirements of the sec. 756 of the Korean Civil Code is the existence of supervisory relationship. It is suggested that the court be quick to recognise apparent supervisory relationship so that the third party’s reliance on it may be reasonably protected.