A. The Plaintiff is a corporation established for the purpose of design service business, etc., and Defendant B served as the Plaintiff’s representative director from March 31, 2012.

B. On May 9, 2013, Defendant B established Defendant C Co., Ltd. (hereinafter “Defendant Company”) for the purpose of civil engineering and design business, etc., and took office as an inside director and representative director. At the time of the establishment, Defendant B was registered as the Plaintiff’s representative director.

C. On February 7, 2014, Defendant B submitted to the Plaintiff a resignation letter to the effect that he/she would resign from the position of the representative director as of February 1, 2014, and again submitted a resignation letter on March 24, 2014.

[Ground for Recognition: Facts without dispute, Gap evidence Nos. 1, 2, 24, Eul evidence Nos. 7, 8, and 15, the purport of the whole pleadings]

2. Determination on the claim for the transfer of benefits following the exercise of the intervention right

A. Defendant B, the representative director of the Plaintiff, was a director of the Defendant Company for the same kind of business as the Plaintiff without the Plaintiff’s board of directors’ approval, and violated the duty of prohibition of competition under Article 397 of the Commercial Act. As such, the Plaintiff exercised the right of intervention under Article 397(2) of the Commercial Act, thereby seeking payment of KRW 43,278,630 paid by the Defendant Company to Defendant B from May 2013 to March 2014.

B. Article 397(1) of the Commercial Act provides, “In the absence of the approval of the board of directors, directors shall not engage in, on their own account or on a third party’s account, a transaction belonging to the same kind of company or become a partner with unlimited liability or director of another company for

In this case, on May 9, 2013, when Defendant B was in office as the representative director of the Plaintiff, he was appointed as a director of the Defendant Company, the Plaintiff’s design service business, etc. The Defendant Company’s purpose is to engage in civil engineering and design business, etc. is as seen earlier, and the fact that Defendant B did not have obtained the approval of the board of directors for taking office as a director of the Defendant Company.