妻가 남편의 名義로 체결한 金錢貸借契約의 效力－계약당사자의 확정과 행위자 － 연구대상판결 : 대법원 2003. 6. 28. 선고 2001다49814 판결 －

In this commentary the author reviews a case where a wife conspiring with a third person received a loan from a financial company in her husband’s name and filed a Keun-mortgage on the husband’s real estate. The unusual aspect of this case is that the third person pretended to be the husband in receiving the loan. The wife made the financial company believe the third person was her husband by submitting a photocopy of her husband’s ID card by sticking the third person’s photo in place of her husband’s. Korean Supreme Court ruled that the apparent agency under Article 126 of the Civil Code can be found when the agent, with the intention to represent, performs a juristic act that exceeds her authority. It ruled that if a person performs a juristic act while pretending to be another person, the apparent agency can not be found unless there exist exceptional circumstances, and supported the ruling of the original court’s decision that rejected the financial company’s claim against the husband for the repayment of the loan. The parties of the loan agreement in question should first be clarified. It should be noted that the swindlers in the contract were not the third person alone but he was in collaboration with the wife of the person whose name was signed on the loan document. If the wife with the basic agency concerning household affairs, i.e., “daily household agency”, conducts a juristic action exceeding her authority by disguising the third person as her husband, and if there is a justifiable cause to acknowledge that the counter party believed the third person to be the husband conducting rightful actions, the responsibility of the husband should be recognized in order to protect the bona-fide counter party who believed that the actions were conducted by the husband himself. This is a logical conclusion in terms of the apparent agency whose purpose is to protect the bona-fide counter party by recognizing the responsibility of the principal to a limited extent for the actions of the agent without proper authority. However, the ruling at issue did not decide who was the borrower in the loan agreement in question, and failed to find whether the contract itself was actually entered into. The Court acknowledged that the agreement was initiated by the wife, however, it dismissed the apparent agency argument of the plaintiff on the grounds that the third person had no basic agency, merely focusing on the third person’s act. However, where the wife, who is closely related to the principal, fraudulently filed a mortgage on the husband’s real estate and received loan, and disguised a third person as her husband as in this case, there is no reason to treat the wife’s action to be any different from the wife conducting a juristic action in excess of daily household agency. The Court’s decision denying the responsibility of the husband for apparent agency in this case cannot be viewed as consistent with its precedents.