無權代理人 責任의 根據에 관한 試論

An agent who purports to make a contract for principal, knowing thathe has no authority to do so, is liable to the other party, even if hebelieved that the principal would ratify. The Article 135 of the KoreanCivil Code prescribes in the 1st Sentence that if a person who has made acontract as an agent of another can neither prove his authority nor getthe principal to ratify the contract, he shall be liable to the other party, atthe latter’s option, either for the performance of the contract or for thecompensation to damages, and in the 2nd Sentence that the provisions thepreceding paragraph shall not apply if the other party was aware, orshould have been aware, that such person had no authority ofrepresentation, or if the person who made the contract as an agent hadno capacity for entering into such contract. This article has followed theArticle 179 of the German Civil Code and Article 117 of the JapaneseCivil Code in prescribing the responsibility for the performance of thecontract or for compensation to damages. If the other party could have obtained full satisfaction from theprincipal had the contract been binding on him, the unauthorized agent isliable to the same extent. In general, legal scholars explain that theground of agent’s responsibility is for the sake of the protection of thirdparty’s reliance, transaction safety and confidence of agent system. Theyalso insist that agent’s responsibility is no-fault liability providing by law. But there are several questions as follows in this explanation. Why is theagent liable to the same extent with principal, despite of having no authority? Why is the agent liable to the performance of the contract,although the contract between the unauthorized agent and the other partyis void? The aggravation of agent’s responsibility according to the generalexplanation is one of the fictional thought, therefore this explanation takean other run. I think that the ground of agent’s responsibility have to be found in hisintention, therefore I suggest ‘the theory of implied warranty’ as a groundfor that responsibility in this paper. If the agent has not aware his noauthority, he is liable to the other party for his intention of warranty tothe authority of representation. If the agent has aware his no authority, heis liable for his intention of warranty to the principal’s ratification. Theagent is in such circumstances liable for breach of an implied warrantythat he has the authority or ratification which he purports to have. Ofcourse, this suggestion is not new viewpoint at all, having no originality. A German legal scholar, Windscheid had already insisted on ‘the theory ofpromise implied warranty’ to explain the Article 125 of the first Draft ofthe German Civil Code. The general explanation of the preceding part wasinsisted by Hupka, a German legal scholar, to explain the Article 179 ofthe German Civil Code. The insistence of Hupka is introduced byHatoyama, a Japanese legal scholar, and generalized in Japan. The most substantial question is that unauthorized agent’s responsibilityfor the performance of the contract is prescribed in the Article 135 of theKorean Civil Code. This is the cause of aggravation of agent’sresponsibility and appearance of general explanation. Therefore, I suggestthe revision of Article 135. The 1st Sentence : if a person who has madea contract as an agent of another can neither prove his authority nor getthe principal to ratify the contract, he shall be liable to the other partyfor compensation to damages. The 2nd Sentence : if the agent neitheraware his no authority nor has fault to do, he shall be liable forcompensation to damages suffered by the other party who relied upon the authority. Provided, that the amount of damages to be recovered may notexceed the profit which would have occurred if the contract was valid. The 3rd Sentence : The provisions the preceding 2 paragraphs shall notapply if the other party was aware that such person had no authority ofrepresentation, or if the person who made the contract as an agent hadno capacity for entering into such contract. My revisional version is different from current provision in tree points. Isuggest that the agent’s responsibility for the performance of the contracthave to be deleted in the 1st Sentence, the agent who neither aware hisno authority nor has fault to do is liable for the limited compensation todamages caused other party’s reliance, not exceed the profit occurred ifthe contract was valid in the 2nd Sentence, and preceding 2 paragraphsshall be also applied to the situation that the other party should havebeen aware the agent’s no authority in the 3rd Sentence.