위탁매매의 법적구조와 위탁물의 귀속

Abstract

This paper deals with the interpretational problems arising out of the commission business in §§101–113 Korean Commercial Code(hereinafter referred to as ‘KCC’). Discussions are focused on the legal frame and nature of commission business, because it deeply effects the ownership of commission goods. Arguments are made as follows. Firstly, the mandate agreement made between a mandator(customer) and a factor belongs to the general mandate contract in §680 Korean Civil Code. But a mandator's authorization must be included in the mandate agreement. Secondly, subject to any other contrary provisions, a factor is obliged not to actually perform but merely to make efforts to perform the mandated purchase(s) or sale(s). Thirdly, a factor owes not only a duty of care but also a duty of loyalty to her mandator. Fourthly, real property is excluded from commission goods. Fifthly, in case of sale(s) commission a mandator keeps her ownership of the commission goods until they are sold. So §103 KCC does not apply to the commission goods but to those credits arising out of the sale(s). Sixthly, in case of purchase(s) commission a factor acquires the ownership of commission goods and then transfers it to her mandator(customer). §103 KCC comes into application from the time when a factor acquires commission goods or negotiable instruments. Seventhly, §103 KCC applies neither to cash nor to the factor’s bank account credits transferred in relation to commission business from the mandator or third party.