미국 보통법상 에이전시에 관한 비교법적 연구 = A comparative study of the U.S. third restatement of agency

다국어 초록 (Multilingual Abstract)

The effect of manifestation of intent should bind only the person who expressed such manifestation. However, the Korean Civil Code provides an exception that allows manifestation of one person directly bounding another person, called “agency.” Because of agency, it is possible for a person to expand the sphere of activity of the individual with respect to time and space and to increase efficiency by using another person. Agency makes professional societies possible. Consequently, agency becomes an indispensable part of the existing social order of organized and specialized modern societies.
However, comparative studies conducted on the law of agency in Korea mainly focus on German law, which is also based on a civil law system. Thus, a study on the law of agency in common law systems is urgently needed. This dissertation aims to study the law of agency in American law (especially Third Restatement of Agency) and suggest its future implications for Korean law.
Although Korean legal scholars also discuss legal relationships between principal and agent, mainly they focus on legal relationships between principal and third party and agent and third party. However, agency relationships should be considered as three-party relationships, taking all three parties, principal, agent, and third party, into account. In addition, the power of agent to affect principal’s legal relations with third party results from the authority conferred by principal to its agent. Thus, the importance of internal relationships between principal and agent should be noted.
Nevertheless, most Korean legal scholars just separate underlying relationships from authorization and indicates ‘mandate, employment, subcontract, partnership and so on’ as examples for the former and consider the later as unilateral manifestation; however, they have not been discussed about the relationships between principal and agent thoroughly. To correctly understand agency relationships as three-party relationships, we should depart from seeing agency relationships as relationships between principal and agent on one hand and third party on the other and see agency relationships as mutual relationships among principal, agent, and third party.
Based in this notion, this dissertation emphases the importance of internal relationships of agency and suggests proper default legal relationships between principal and agent. These duties includes duty to perform and follow instructions, duty of care and skills, duty of loyalty, and other fiduciary duties for agent and duty of good faith and information, duty of remuneration, duty to reimburse and indemnify for principal.
Moreover, this dissertation also tries to solve the problems of undisclosed principal and unidentified principal in Korean law. Korean agency law requires agent to disclosed the identity of its principal when the agent deal with third party. If the reason for such requirement is to protect third party from facing unexpected relationship with principal, I believe that allowing the notion of undisclosed principal and unidentified principal does not contradict Korean law.
German legal scholar, Wolfram Müller-Freienfels, said in past people attempted “to fit the model of contract developed under the reign of Roman law into the various aspects of modern social life.” However, the social functions of today’s contract requires the extension of the contractual “vinculum juris.” I think agency is the example of such requirement. Considering the nature of agency as three-party relationships, I think it is time to depart from seeing agency relationships as relationships between principal and agent on one hand and third party on the other. Establishing default legal relationships between principal and agent is also needed to be prepared for this extended forms of agency relationships.