In a case where a company has the external form of a juristic person but it merely takes the form of a juristic person, and in substance, it is merely a private enterprise of another person behind the corporate personality, or it is used without permission for the purpose of avoiding the application of the laws against the person behind the corporate personality, the denial of the responsibility of the person behind the corporate personality by asserting that even if the act of the company is an act of the company, it shall belong only to the company on the ground that the person behind the corporate personality is a separate person, and thus, it shall not be permitted against justice and equity as an abuse of the corporate personality in violation of the principle of trust and good faith. Therefore, the company as well as the person behind the corporate personality shall be held liable for the act of the company (see Supreme Court Decision 97Da21604, Jan. 19, 201).

In this context, if a company appears to be only a private company of another person behind the corporate personality, in principle, it shall be punished to the extent that the company's name is not only the personal business but also the personal business, in light of the legal or the articles of incorporation, such as whether the legal or factual act at issue is mixed to the extent that it is difficult to distinguish between the property and the business, whether the decision-making procedure was not followed by the law or the articles of incorporation, such as not holding a general meeting of shareholders or the board of directors, the degree of the company's capital, the scale of business and the number of employees, etc.

In addition, even if it does not reach the above level of corporateization, a person behind the hinterland of the company may be held liable for the act of the company as well as the company in case of abuse of corporate personality, but in this case, at the time of abuse such as evasion of debt, a person behind the hinterland of the company is in a dominant position in which the company can be used in his/her own mind, and the act of abuse of corporate system is required by taking advantage of such position. Whether the person behind the hinterland abused the corporate system should be determined individually by comprehensively taking into account all circumstances such as the degree of corporateization and recognition or trust of the other party (see, e.g., Supreme Court Decision 2007Da90982, Sept. 11, 2008).

In addition, these circumstances must be proved by the person who asserts the abuse of corporate personality.

citing the reasoning of the judgment of the first instance court, the lower court: (a) it was not paid KRW 77,408,728 from AB to the joint Defendant agricultural company of the first instance trial; (b) KRW 23,453,250 from the price of food materials supplied to BB to the Plaintiff; (c) on October 19, 2010, the Defendants were not in possession of all the shares of AB and BB; (b) on the grounds that the Defendants were in possession of all the shares of the Plaintiff’s factory establishment and sales of the building and sales of the site for AB; (c) on the other hand, it appears that the Defendants were in possession of all the shares of the Plaintiff’s factory establishment and sales of the building and sales of the site for AB; and (d) on the other hand, the Defendants were directors of AB and BB; and (c) on the other hand, the Defendants were in possession of the shares of the Plaintiff’s factory establishment and sales of the site for AB; and (c) on the completion of the 20071.71.

was determined to the effect that it was.

However, in light of the legal principles as seen earlier, the facts and circumstances acknowledged by the lower court cannot be deemed as a case where the property and business are mixed to the extent that it is difficult to distinguish between the Defendants and AAB from the property and business, and in light of the extent of the company’s capital and the degree, the size of business and the number of employees, etc., it is difficult to find out whether the above company’s name is only and actually punished to the extent that it is not a personal business of the Defendants, and it is difficult to readily conclude that the Defendants committed abusive acts such as evading obligations

Nevertheless, the lower court’s determination that the Defendants constituted an abuse of the legal personality of AA and BB solely based on the facts and circumstances as indicated in its reasoning is erroneous by misapprehending the legal doctrine on abuse of legal personality and the burden of proof, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal on this point is with merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for further proceedings and determination.

It is so decided as per Disposition by the assent of all participating Justices.