상사계약의 체결과 그 효과의 귀속에 관한 연구- 판례의 분석을 중심으로 -

Abstract

Business activity is a part of interindividual transactions and generally theapplication of general principle in civil code will suffice. But there are insufficientaspects by the application of general principle alone because of specialty of businessside. Commercial act provides special provisions including merchant, commercialemployees, trade names, transfer of businesses, commercial sales, methods ofagencies, commercial agents, carriage business, etc. which reflect nature of businesstransactions. Theses provisions reflects the safety of transactions, immediacy, andthe necessity of protecting appearance which is important to business activities. This article has to do with topics on conclusion and effect of civil and businesscontracts presented in 2013 periodical symposium of KACPL. Specifically, I selectimportant judicial precedents in part 1 general provisions and part 2 commercialactivities of commercial act, and divide those precedents into 3 parts and discussthem. First, I have taken an in depth look at the theory and judicial precedents on theconcept of merchant and commercial agent, which is the subject of businessactivities and fundamental concept of applying commercial act. Korean SupremeCourt stood on preopening business theory, but recently steered its position phase-intheory on the time of acquiring qualification of merchant. I also looked at merchantsuitability in relation to the specialized job such as lawyers. I also discussed whetherarticle 14 (apparent managers) of commercial act also apply to employees investedwith partial comprehensive agency authority. Second, I reviewed theory and judicial precedents on the conclusion and specialtyof commercial contracts. The situation where commercial activities of an agent shall be effective as against the principal, even if the agent does not disclose that he/sheis acting on behalf of the principal in contrast to civil transactions. I also looked atprecedents, applicable to buyers' duties to inspect subject matters and to notifydefects in case of sales between merchants. I also discussed scope and criteria ofapplication on extinctive prescription for commercial claims. Third, I reviewed theory and judicial precedents on commission agency and bondpurchasing business in part 2 commercial activities of commercial act. I also lookedat the yardstick of judgement for commission agent throughout recent judicialprecedents. Lastly, I reviewed legal nature and theory for bond purchasing businessincorporated into commercial act in recent.