[2] The case holding that if an executive officer of an insurance company purchases corporate bonds issued by the policyholder at a surface rate lower than the distribution rate in order to attract the insurance contract, it constitutes "the act of offering special profits prohibited under Article 156 (1) 4 of the former Insurance Business Act" in the same manner as the act of actually discounting the insurance premiums to the policyholder

The court below accepted the judgment of the court of first instance, acknowledged the fact that Defendant 1 purchased corporate bonds issued by it through a securities company, etc. to support group policyholders bypassing them from June 17, 1998 to July 24, 198, which was at the time when the non-party 1 held office as a managing director of the non-party ship life insurance company (hereinafter referred to as the "non-party company") and sold them at a surface interest rate of 7.586 billion won to the non-party company by selling them at a circulation rate higher than the purchase interest rate on the same day, and caused losses in sales of the non-party company's insurance proceeds equivalent to the above 7.5 billion won to the non-party company's insurance proceeds due to the violation of Article 156 (1) 4 of the former Insurance Business Act while attracting insurance contracts, it is difficult to view that the non-party company at the time did not have suffered losses equivalent to 7.5 billion won or more due to the above sales loss of the company's insurance proceeds to the above financial structure of the company.

2. The judgment of this Court

Article 399 of the Commercial Act provides that a director shall be liable for damages to a company when he/she commits an act in violation of the laws and regulations. Thus, an act in violation of the laws and regulations that stipulate individual obligations to comply with when he/she performs his/her duties as a director and an act in violation of the provisions of the Commercial Act that require compliance in the course of performing his/her duties constitutes a violation of the above Acts and subordinate statutes. If a director commits an act in violation of the above Acts and subordinate statutes in performing his/her duties, the act in itself constitutes a default on the company, and thus, the company shall not be exempted from liability for damages unless there are special circumstances. As to an act in violation of the above Acts and subordinate statutes, there is no room to apply the business judgment rule that can be considered in cases where a director is liable for damages due to a violation

However, Article 156 (1) 4 of the former Insurance Business Act (amended by Act No. 5500 of Jan. 13, 1998 and amended by Act No. 6891 of May 29, 2003) prohibits a person engaged in the conclusion or solicitation of insurance contracts from promising to provide a policyholder or insured worker with special benefits or providing premium discounts or other special benefits with respect to the conclusion or solicitation thereof. Article 218 (5) of the former Insurance Business Act imposes penalty on a person who violates the above provisions. Thus, if Defendant 1 purchased corporate bonds issued by a policyholder in order to attract insurance contracts as an executive officer of a non-party company at a surface rate lower than the distribution rate of the non-party company, such purchase constitutes an act of offering special benefits prohibited under the above Insurance Business Act, and thus, Defendant 1 is liable to compensate for damages suffered by the non-party company due to the violation of the above Act.

However, the court below rejected Defendant 1’s claim on the ground that Defendant 1 did not neglect the duty of care by applying the business judgment rule to Defendant 1’s above violation of the legal provisions. In so determining, the court below erred by misapprehending the legal principles on directors’ liability for damages under Article 399 of the Commercial Act.

However, according to the records, Defendant 1 could not attract group insurance contracts in order to resolve the liquidity shortage of the non-party company due to a rapid increase in the liquidity shortage due to the termination of the insurance contract after the accumulated loss of the non-party company and the IMF crisis. In such a way, even if the non-party company failed to resolve the liquidity shortage of the non-party company, the non-party company was faced with a crisis such as the immediate bankruptcy because it could not cope with the request for insurance premium refund due to the termination of the insurance contract after the IMF crisis, and the defendant 1 could escape from the above act. Considering these circumstances, it is sufficient to view that the non-party company could have brought about more intangible profits than the sales loss of the corporate bonds issued by the group policyholders of the non-party company despite the above default of the non-party company. Accordingly, the court below's rejection of the defendant 1's liability for damages is justified.

Therefore, the judgment of the court below is not erroneous in the misapprehension of facts against the rules of evidence or the misapprehension of legal principles as to the director's liability for damages to the company, which affected the conclusion of the judgment.

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-dam (Presiding Justice)