[2] The purport of Article 388 of the Commercial Code concerning remuneration for directors of a stock company

[3] The case holding that it is not permitted in light of the good faith to refuse the payment of retirement allowances on the sole basis of the fact that there is no provision on the payment of retirement allowances after a resolution of the general meeting of shareholders, even though the payment of retirement allowances is subject to the rules on the payment of retirement allowances for executive officers passed

[2] The purport of the Commercial Code that the directors’ remuneration should be stipulated in the articles of incorporation or that the resolution of the general meeting of shareholders should be made is to prevent the shareholders’ interest from being unfairly infringed by setting excessive remuneration to the directors executing the business of the company.

[3] The case holding that even if the articles of incorporation of a stock company provides that the payment of retirement allowances for officers shall be based on the retirement allowance payment rules for officers who have passed a resolution of the general meeting of shareholders, it is not permitted in light of the good faith principle to refuse the payment of retirement allowances solely on the fact that the company has calculated the retirement allowances from the balance sheet to the officers of the company, and actually paid retirement allowances for the retired officers according to the above standard, and that the general meeting of shareholders approved this balance sheet every year, and that there is no retirement allowance payment regulations which the company passed a resolution of the general meeting of shareholders

2. Defendant DNA Co., Ltd shall pay to the Plaintiff 140,791,120 won with 5% per annum from November 7, 2003 to October 8, 2004; and 20% per annum from the next day to the full payment date.

3. The costs of lawsuit shall be borne by the defendants.

4. The above paragraphs 1 and 2 can be provisionally executed.

The following facts are not disputed between the parties, or may be acknowledged by taking into account the descriptions of Gap evidence 1, Gap evidence 3 through 9, Gap evidence 2-1, 2, Eul evidence 1 and 2:

A. On April 1, 2004, Defendant Digital Sys Co., Ltd. (hereinafter “Defendant Digitals”) borrowed KRW 228,000,000 from the Plaintiff as the interest rate of KRW 12% per annum and the due date of payment until December 31, 2004, respectively, jointly and severally guaranteed the above loan obligation against the Plaintiff by Defendant Digitals Co., Ltd.

B. On March 17, 1979, the Plaintiff was employed as a director at Defendant Dys and was appointed as the representative director on February 24, 2001. The Plaintiff owned 43.47% of the registered ordinary shares as the largest shareholder of Defendant Dys, and transferred all of his own shares to Nonparty Dys and retired from the office of the representative director on September 24, 2003, and then retired from the office on November 7, 2003.

C. Although the articles of incorporation of Defendant Dysia requires the payment of retirement allowances for officers following the resolution of the general meeting of shareholders, there was no resolution on the payment rules of retirement allowances for executives. However, among the financial statements approved by Defendant Dysia at the general meeting of shareholders on March 30, 2004, Defendant Dys did not adopt a resolution on the payment rules of retirement allowances for executives: Provided, That the retirement allowances for executives and employees who have served for at least one year shall be paid to the employees and employees who have served for at least one year on the balance sheet approved by the general meeting of shareholders on March 30, 204, and shall be calculated by multiplying the average amount of wages for one month at the time of retirement by the number of years of continuous service. Of the above balance sheet, the amount of retirement allowances for the items of debt covered by the number of 487,906,179 won reduced by 470,048,300 won compared to the previous year in the corresponding year (203).

D. In the statement of the estimated amount of retirement pay in 2002, the sum totaling KRW 957,954,470, including the plaintiff, shall be included in the calculation of the retirement pay for all 72 employees including the plaintiff. The statement of the estimated amount of retirement pay in 2003 shall include 470,048,300,000 for the nine nine persons, including the plaintiff and the non-party incentive, satis, satis, satis, satis, and satis, who were nine persons, including the plaintiff, in 2003.

E. On July 15, 2003 of the same year, when the defendant DNA was in office as a director, he paid a proportional retirement allowance to each service year on the ground that he was retired on June 30, 2003, in proportion to the number of years of service. In accordance with the above balance sheet, the plaintiff's retirement allowance is KRW 149,747,210, and the defendant DNA reported that he withheld taxes on the plaintiff's retirement income corresponding to the above amount on March 10, 204.

2. Determination:

A. Determination on the loan request

The Plaintiff lent 228,00,000 won to Defendant Dys at an annual interest rate of 12%. Since Defendant UAS and Kim Gyeong-hee jointly and severally guaranteed the above debt, the Defendants jointly and severally have the obligation to pay to the Plaintiff interest and delay damages at the rate of 12% per annum from July 5, 2004 to October 9, 2004, the last delivery date of the complaint of this case, which is the last delivery date of the complaint of this case, and from the next day to the full payment date, 20% per annum from the following day to the last delivery date of the complaint of this case.

B. Determination on retirement allowance claims

(1) Officers such as directors of a company shall not be deemed to be employees under the Labor Standards Act who provided certain labor under the direction and supervision of the employer and receive certain wages. Article 388 of the Commercial Act provides that a resolution of the general meeting of shareholders shall be made if the company’s articles of incorporation provides or does not provide for the remuneration of directors. The Articles of incorporation of Defendant D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D D DD did not have the rules for the payment of retirement allowances for officers subject to a resolution of the general meeting of shareholders. Thus, the Plaintiff may not claim payment of retirement allowances in accordance with the Labor Standards Act, the Commercial Act, or the articles

(2) The purport of the Commercial Act that the directors’ remuneration should be determined by the articles of incorporation or by a resolution of the general meeting of shareholders lies in preventing the shareholder’s interest from being unfairly infringed by the directors executing the company’s business by excessively setting their remuneration.

As seen above, Defendant D's License has calculated a retirement allowance to be paid to Defendant D's officers on the balance sheet based on a certain standard and appropriated the amount as the company's debt. In fact, Defendant D's general meeting of shareholders approved this balance sheet every year, and Defendant D's withholding income tax on the retirement allowance to be paid to the officers including the Plaintiff. Furthermore, in light of the purport of the Commercial Act stipulating that the amount of the director's remuneration should be determined by the articles of incorporation or by the resolution of the general meeting of shareholders, the practice of Defendant D's license as to the retirement allowance for officers, and the equity between the Plaintiff and other officers receiving the retirement allowance, it is not allowed in light of the principle of good faith to refuse the payment of the retirement allowance to the Plaintiff solely on the fact that there is no provision on the payment of retirement allowance that Defendant D's D's retirement payment to the Plaintiff following the resolution of the general meeting of shareholders.

Therefore, Defendant Dys are obligated to pay to the Plaintiff 149,747,210 won of retirement allowance calculated on the basis of the criteria for calculation of retirement allowance in accordance with the balance sheet, and to pay to the Plaintiff damages for delay at the rate of 5% per annum under the Civil Act from November 7, 2003 to October 8, 2004, which is the delivery date of the complaint in this case, and 20% per annum under the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings from the next day to the full payment date.

3. Conclusion

Therefore, the plaintiff's claim against the defendants of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judges Yoon-nam (Presiding Judge)