[약속어음금청구사건][고집1969민(2),166]
The case holding that the issuance of a promissory note constitutes a transaction between the company and the director.
Even if a company received shares of the company from a shareholder who is a director of the company and issued a promissory note equivalent to its value to the above director instead of retiring capital after acquiring shares of the company, such issuing act constitutes a transaction between the company and its directors, and without approval by the board of directors, such issuing act of the promissory note is an absolute invalid juristic act regardless of the intent or bad faith of the payee or the endorsee, and thus, the company does not bear an obligation to pay the note
Article 398 of the Commercial Act
Plaintiff
Korea Industrial Corporation
Seoul Central District Court (68Ga2647) in the first instance trial (Supreme Court Decision 68Da2647)
The original judgment shall be revoked.
The plaintiff's claim is dismissed.
Litigation costs shall be borne by the plaintiff at the first and second trials.
The plaintiff and the supplementary intervenor, and the defendant shall pay to the plaintiff 36,00,000 won with an annual interest rate of 6% from December 1, 1967 to the full payment.
The judgment that the costs of lawsuit shall be borne by the defendant and the declaration of provisional execution are sought.
The defendant's attorney is seeking the same judgment as the disposition.
1. On March 8, 1966, the fact that the Defendant Company issued one promissory note with the maturity of KRW 36,000,000 at par value (payment date) to Nonparty 1 on November 30, 1967 (payment date) and one promissory note with the maturity of KRW 16,00,00,00 to the Plaintiff’s Intervenor 1, and all the place of payment and the place of payment in Seoul, Jung-gu, Seoul, the Payment Office, and the Defendant issued one promissory note with the maturity of KRW 16,00,00 to the Plaintiff is without dispute between the parties and there is no dispute as to the establishment of the part other than the endorsement column. In full view of Nonparty 2’s testimony on November 30, 1967, Nonparty
2. On November 16, 1965, all of the shareholders of the defendant company including the plaintiff 1 and its assistant 1 and transfer 18% of the shares of the plaintiff 1 and the defendant company between the defendant 1 and the intervenor 1 and the defendant 6 pursuant to a resolution of the above general meeting of shareholders. Thus, the defendant company's contract between the plaintiff 1 and the defendant 1 and the defendant 6 to issue the above promissorysory note as part of its absolute value is concluded, and the defendant company issued the above promissory note as of March 8, 1966. The plaintiff's holder of the above promissory note as of November 30, 1967 and presented it for the payment of the above promissorysory note with its maturity, but the defendant company's testimony as of November 6, 198 and the defendant 1 and the defendant 6's testimony as of June 16, 198 is not so established. Thus, the defendant 1 and the defendant 16's testimony as of June 196, 196.
3. In addition, since the above promissory note was issued by the resolution of the general meeting of shareholders under the consent of all shareholders of the defendant company, and it does not require the approval of the board of directors since there is no conflict of interest with the defendant company, the above issuance of the promissory note is not necessary. Thus, even if the agreement between the defendant company and the plaintiff's supplementary intervenor on November 16, 1965 is deemed to have been made with the consent of all shareholders or the resolution of the general meeting of shareholders as of November 16, 1965, there is no evidence to acknowledge that the approval of the board of directors of the defendant company was made in the contract itself as of November 16, 1965 (and there is no evidence to support that the resolution of the general meeting of shareholders was made) and the above agreement between the defendant company and the plaintiff's supplementary participant on November 16, 1965, the defendant company's issuance of the promissory note is not a direct or indirect agreement between the defendant company and the plaintiff's supplementary participant (which is a director's consent).
4. Accordingly, the issuance of promissory notes in March 8, 1966, which belongs to direct transaction between the defendant company and the intervenor joining the plaintiff, is an absolute invalidation act regardless of the plaintiff's good faith or bad faith, and thus, the plaintiff's claim is unreasonable, which is, the court below's decision which differs from this conclusion is unfair, and the defendant's appeal is justified. Thus, the court below's decision is revoked in accordance with Article 386 of the Civil Procedure Act, and it is so decided as per Disposition by applying Article 89 and Article 96 of the same Act with respect to the bearing of litigation costs.
Judges Kim Yong-chul (Presiding Judge) Lee Chang-hee