2008년 상법총칙ㆍ상행위 판례회고

This Paper reviews some cases that covered the General Provision and Commercial Activities Under the Commercial Act delivered by the Korean Supreme Court in 2008. This review starts with the Merchant-by Legal Construction case. In this case, a judicial scrivener claims that he is a Merchant-by Legal Construction and he is subject to Commercial Act. However, the Supreme Court denied his claim by the reason of that there is no special reason to admit that a judicial scrivener should be treated as a merchant. In a second case, the Supreme Court confirmed that the person who broke partnership agreement shall be liable simultaneously with the other partners to effect performance in respect of commercial claims arising from a transaction in favor of a third person who has effected such transaction in the belief that such person was the proprietor of the business. According to the article 24 of Commercial Act, the person who has lent his name is liable arising from a transaction that he allowed another person to carry on business using his name or trade name. In the third case, the Supreme Court denied the liability of the corporation when the shareholder who owns 50% of outstanding shares has false registration on the basis of the false apparent facts. The reason is that the false registration was not done by the representative director of corporation who should be in charge of doing the registration. In the fourth case, the Supreme Court confirmed that a business under article 42 (1) of the Commercial Act refers to a functional asset as an organic entity organized for a certain business purpose which means that an organic combination of tangible and intangible assets and factual relation with economic values functions as a source of revenue and the source of revenue becomes an object of transaction as if it was kind of goods. Thus, the legal issue in a business transfer occurred in the disputed case should be determined depending on whether an transferee continues to operate the business which the transferor used to operate after he/she got transferred with a functional asset as a source of revenue. In addition, the Court recognized that in the case where a business transferee ceased to use a transfer's business name, the responsibility regarding the individual notice of acceptance of obligation to a creditor of an transferor still exist, whether he/she bears the responsibility of paying off the obligation to the creditor. The legal principle of article 44 of the Commercial Act acknowledges the existence of liability of paying off obligations where a business transferee makes an advertisement of acceptance of obligations, although he/she ceases to use a transferor's trade name. Its application is not limited to the situation where a business transferee makes an advertisement of acceptance of a transferor's obligation, but also applied to the situation where a transferor's creditor was given an individual notice and thus the liability of paying off obligations occurs as to such creditor. In addition, two cases covers the extinctive prescription for commercial claims. In article 64 of Commercial Act, except as otherwise provided in this Act, a claim which has arisen through a commercial activity shall be extinguished by prescription if it is not exercised within five years. One case of them dealt with special type of mutual loan agreement which has effected among members. It is in nature special type of loan with the characteristics that only the highest bidder is offered loan with a discounted price firstly and the second highest bidder take the loan next month. In this case, the Court recognized that such claims arising from the failure of the repayment by debtor is commercial claim in a commercial activity and shall be extinguished by prescription if it is not exercised within five years by the creditors. Also, in the other case the Supreme Court finalized that the claim arising from failure of the repayment of the debt provided by the Bank, was bounded by the Commercial Act so that the 5 year period under the Commercial Act applied to this case too. Finally, The Court confirmed that the legal nature of article 69 in Commercial Act in which provided buyer's duty to examine subject-matter and to notify defects therein related commercial transaction, is not mandatory. That is to say, the nature of article 69 is optional provision. Conclusionally, it seemed that there was no bitterly controversial cases which attracts legal debate concerning the General Provision and Commercial Activities Under the Commercial Act this year. However, one Supreme Court case relating to extinctive prescription for commercial claims is worthwhile to comment in detail. The case dealt with special type of mutual loan agreement which has effected among members. The disputed transaction is effected between individual merchant. While in a Appellate Court, defendant's claim that the transaction is commercial activity was denied, the Supreme Court confirmed that the disputed transaction is commercial one. It is analysed that the Supreme Court seems to try to expand the coverage of Commercial Act by the use of the provision of ancillary commercial activity in the Commercial Act. Its attitude brings new insight in the area of commercial act but more care and further research will be necessary for development in the future.