[2] The case holding that a director under Article 401 (1) of the Commercial Code is liable for damages against a third party

[2] Where a full-time director in charge of the accounting and accounting of the representative director of a company knew that he was unable to perform his sales contract even if he received advance payment due to the aggravation of management conditions of the company at the time of the contract, or he was able to know that he was unable to perform his sales contract, the fact that he received the advance payment from the other party constitutes an act of violating the other party's duty of loyalty and good manager's duty of care intentionally or by gross negligence, and therefore, the director is liable to compensate the other party for damages equivalent to the sales

2. Based on the selective claim added at the trial of the party, the defendant shall pay the plaintiff 140,000,000 won jointly and severally with the defendant C of the court below, and 6% per annum from August 29, 2001 to March 13, 2002, and 25% per annum from the next day to the day of full payment.

3. The plaintiff's remaining claims are dismissed.

4. The costs of the lawsuit shall be borne by the defendant in both the first and second instances.

5. Paragraph 2 can be provisionally executed.

The defendant shall jointly and severally pay to the plaintiff 140,000,000 won and 25% interest per annum from September 10, 200 to the date of full payment (the plaintiff filed a claim for restitution based on the cancellation of the initial sales contract, but the plaintiff was selected by adding the claim for damages under Article 401 of the Commercial Act to the plaintiff).

2. Purport of appeal

The judgment below is revoked. The plaintiff's claim is dismissed.

The plaintiff jointly with the defendant C of the court below and concluded the above contract with the plaintiff on December 2, 199, as if the plaintiff had no intent and ability to perform the contract, even if the contract was concluded on the condition of advance payment, and the plaintiff paid 140,000,000 won to the defendant in advance. Since the plaintiff cancelled the above contract by service of the duplicate of the complaint of this case, the defendant asserted that the defendant is jointly and severally liable to return the above amount as restitution. Thus, the fact that the copy of the complaint of this case containing the plaintiff's expression of intent to cancel the contract of this case as of December 2, 1999 is clearly recorded in the record that the defendant was delivered to the defendant, but there is no evidence to acknowledge that the party of the contract subject to the cancellation is the defendant. However, as seen later, as seen earlier, C is a director of the non-party D corporation (hereinafter referred to as "D") on behalf of the plaintiff, and therefore the plaintiff's assertion is without merit.

2. Claim for damages against directors;

A. The parties' assertion

The plaintiff, in violation of the duty of care as a director of D, committed a breach of the duty of care as the representative director C, and thereby neglecting the duty of directors to receive advance payment from the plaintiff after deceivinging the plaintiff for one year in the future under the condition of advance payment. Thus, the defendant asserts that the defendant is jointly and severally liable for damages equivalent to the above amount of damages suffered by the plaintiff under Article 401 of the Commercial Act. Accordingly, the defendant asserted that he is liable for damages under Article 401 of the Commercial Act. The defendant was the representative in charge of D's accounting, as the plaintiff's agent in charge of D's deposit account, only for the plaintiff's deposit account, regardless of the contents of the sales contract concluded between D and D. Thus, he is not liable.

B. Facts of recognition

The following facts are either in dispute between the parties, or acknowledged as being based on Gap evidence 1-1, 2, 3, and 2-1, 2, 4 through 7, 8-1, 2, 9, Eul evidence 2 through 6, 10, and 11-2, and Eul evidence 9 on the testimony of the witness E of the party concerned, and the whole purport of the oral argument. Any statement in Eul evidence 9 is not believed, and each statement in Eul evidence 1, 7, and 8 is not interfered with the above recognition, and there is no other counter-proof.

(1)C has established and operated D on August 16, 1994 and operated D as its representative director. D directors except C are all of their wife F and their children, and they are living together with the Defendant. Since D’s office on February 10, 1995, the Defendant worked in D’s general affairs, while taking charge of the entire accounting affairs, such as the management of the company’s deposit passbooks and seal impression, and the borrowing of funds.

(2) Foreign Party E purchased and supplied land from D from November 1997 to the Plaintiff. Around November 1999, upon request of C to introduce and request a person to be supplied with land for one year from D on condition of the advance payment, the Plaintiff was introduced to C and the Defendant on December 2, 1999, and the Defendant was aware of the fact that from the end of November 1999, the Defendant was a child of C.

(3) On December 2, 199, the Plaintiff entered into a sales contract with Eul and the defendant Eul as well as D's representative at D's office on December 2, 199 with the condition that D shall pay in advance the purchase price of KRW 140,000,000,000, and D shall be directly supplied to the Plaintiff for one year from March 1, 200, and the Defendant shall pay the Plaintiff the purchase price to the deposit account in the name of the defendant. The Plaintiff deposited the above purchase price of KRW 140,000,000,000, which is on the day of the contract, into the Defendant's deposit account on December 2, 199, and the Defendant transferred all of the above money to D's deposit account on June 6, 200.

(4)D concluded a transfer contract with the non-party G Co., Ltd. (hereinafter “Plaintiff”) that did not register its incorporation on January 5, 200 on the date of the instant contract, including long-term delayed payment of wages. Around January 4, 2000 prior to the due date of the said contract, D terminated its business after entering into a transfer of business with the non-party G Co., Ltd. (hereinafter “Plaintiff”) that did not register its incorporation on January 6, 200.

(c) Markets:

Article 401 (1) of the Commercial Act provides that "If a director has neglected his/her duties by bad faith or gross negligence, he/she shall be jointly and severally liable for damages to a third party." In the original case, the director, upon delegation by the company, shall not be held liable for damages to the company, even if he/she has breached his/her duty of due care as a good manager, and in relation with a third party, even though he/she has suffered damages in violation of the above duty. However, if the activities of a stock company in an important position in economy and society depend on the duties of the director, the director shall be held liable for damages to a third party due to bad faith or gross negligence of the above director when he/she causes damages to the third party in violation of the above duty, the director shall be held liable for damages to the third party in relation to the failure of duty due to bad faith or gross negligence of the above director. In light of the management status of the company, if the director was able to have been unable or impossible to perform his/her contractual obligations due to the failure of performance, it shall be deemed as a director's breach of duty (see Supreme Court Decision 2024.

However, in full view of the following facts: (a) the Defendant was a representative director with a representative director's son and a full-time director in charge of accounting as well as with the representative director; (b) he was well aware of the assets and liabilities of D at the time of the instant contract; and (c) D transferred all of the assets and liabilities before the due date of the instant contract after he was paid in advance from the Plaintiff to the newly incorporated company; and (d) at the time of the instant contract, D was unable to perform the contract even if it was paid in advance from the Plaintiff due to the aggravation of management conditions; (b) it is reasonable to deem that the Defendant was able to know that it was well aware of such circumstances or he was paid in advance. Nevertheless, the Defendant was attending the place where the instant contract was entered into and paid in advance by the Plaintiff with his personal deposit account by intention or gross negligence; and (c) damages arising from the breach of duty and due diligence are equivalent to the above amount equivalent to C representative director and the Plaintiff, and thus, the Defendant is jointly obligated to pay damages for delay.

3. Conclusion

Therefore, the defendant is jointly and severally liable with C to pay damages for delay at the rate of 6% per annum under the Commercial Act from August 29, 2001 to March 13, 2002, and 25% per annum under the Special Act on the Promotion, etc. of Legal Proceedings from the next day to the day of full payment, which is the day after August 28, 2001, on which the plaintiff's written brief from August 29, 2001, stating the cause of the claim added at the trial was served on the defendant, which is the day after the written brief from August 28, 2001, stating the cause of the claim was served on the defendant. Thus, the plaintiff's claim of this case is accepted within the above recognized scope of the above recognition, and the remaining claims are dismissed because the court below recognized the obligation to return the price due to the cancellation of the sales contract, but it is found that the judgment below is selectively combined in the trial, and it is ordered that the remainder of the plaintiff's claim is dismissed.

Judges Kim Su-sung (Presiding Judge)