[2] Whether a director of a stock company is liable for damages suffered by the company in a case where the director's performance of duties by another director in charge of another director in charge of the company has been neglected despite the reason for suspicion

[3] Whether a director who conducts the business of making a false accounting in order to avoid a shortage of company funds after embezzlement of company funds took place is liable for damages under Article 399 of the Commercial Act (negative in principle)

[4] In a case where a creditor who has several damage claims different from the time of occurrence and the cause of occurrence with respect to the same debtor claims only a part of them, whether the amount of the claim shall be specified for each damage claim (affirmative)

[2] A director of a stock company, as a member of the board of directors, is not limited to expressing his/her intent on a bill presented to the board of directors, but also to comprehensively monitor the performance of duties by other directors in charge of duties. Thus, a director of a stock company neglected his/her duty of care or supervision required for another director when he/she left it despite the existence of a reason to suspect that the performance of duties by another director in charge of duties was illegal. Thus, he/she cannot be exempted from liability for

[3] In order to avoid the shortage of company funds after the act of embezzlement of the company funds was conducted, the director who has conducted the business of making a false accounting in order to avoid the shortage of company funds, may recover the amount of the damage claim from the persons who participated in the act of embezzlement or the damage claim from the embezzlement at the time of the accounting, but he had the opportunity to detect and recover the act of embezzlement by making a false accounting, and he has the opportunity to detect and recover the act of embezzlement, and he is not liable for damages, unless there are circumstances such

[4] Even if a creditor has multiple damage claims against the same debtor, so long as the damage claims are separate claims that differ from the time of occurrence and the cause thereof, they constitute separate subject matters of lawsuit. Since the date of commencement of extinctive prescription and the defenses that the debtor may assert may differ, the creditor who seeks to bring a lawsuit must specify the amount of the claim for each damage claim, and the court should specify the amount of the amount of the award for each damage claim. This legal principle also applies where the creditor claims only a part of multiple damage claims.

Article 399 of the Commercial Act provides that a director shall be liable for damages to a company when he/she commits an act in violation of the Acts and subordinate statutes or the articles of incorporation or neglects his/her duties. Thus, a director's act in violation of the Acts and subordinate statutes, such as the Commercial Act, which individually provides for the obligation to observe when he/she performs his/her duties as a director, and a director's act in violation of the above Acts and subordinate statutes, constitutes a violation of the provisions of the Commercial Act that should be observed when he/she performs his/her duties. If a director performs his/her duties in violation of the above Acts and subordinate statutes, the act itself constitutes a default on the company, and thus the company is not liable for damages unless there are special circumstances (see Supreme Court Decision 2003Da69638, Oct. 28, 2005). A director of a stock company shall not be liable for damages to the board of directors as a member of the board of directors, and since he/she shall comprehensively monitor another director's act in violation of his/her duties.

Based on the adopted evidence, the court below concluded a new construction contract with the non-party 1 company on December 27, 1996, and concluded a final contract with the non-party 1 company on August 14, 1997, and paid the above amount to the non-party 1 company by the method of withdrawing promissory notes and the current deposit. The plaintiff paid the price to the non-party 1 company at KRW 1.286 billion on August 25, 1997. The court below rejected the above fact that the non-party 2, the defendant, the non-party 3, and the non-party 4 were liable to compensate the non-party 1 company for damages by including the non-party 1 company's total amount of KRW 3.5 billion from the non-party 1 company's total amount of KRW 9.7 billion to the non-party 1 company's non-party 1 company's non-party 1's non-party 1's non-party 9.7 billion won.

2. As to the first Seoul subordinate housing association and red housing association related damages

A. The judgment of the court below

In full view of the selected evidence, the court below determined as follows: ① (a) the Defendant wrongfully embezzled the company’s funds to dispose of the non-party 2’s funds disbursed in the year 197 and to purchase real estate in the name of the non-party 2; and (b) to avoid the shortage of funds embezzled as above, the court below held that: (a) although there was no fact of actually lending the funds from March 28, 1997 to December 24, 197, the first instance association in Seoul, the amount of the project cost of KRW 8.416,158,948 was used to account as if the funds were lent to the Plaintiff; (b) the Defendant incurred damages equivalent to the amount of the company’s funds; (c) the Defendant embezzled the company’s funds for the purpose of raising funds to the president of the Hongdong Housing Association; and (d) to avoid the shortage of funds embezzled, the court below held that there was no amount equivalent to KRW 300,000,000 from December 39, 1997.

B. The judgment of this Court

However, we cannot accept the above decision of the court below for the following reasons.

Inasmuch as the liability for damages under Article 399 of the Commercial Act due to a director’s violation of the laws or the articles of incorporation or an act of neglect of duties is limited to the damage in proximate causal relation with the violation, if there is no proximate causal relation between the loss incurred as a result of the act of embezzlement and the loss (see Supreme Court Decision 2005Da2820, Apr. 29, 2005, etc.), the director who has executed the business of false accounting to avoid the shortage of the company’s funds after the act of embezzlement of the company’s funds was conducted, at the time of accounting management, could recover the damage claim due to the embezzlement or embezzlement from the persons who participated in the act of embezzlement, but at the time of accounting management, was provided with an opportunity to detect and recover the act of embezzlement by means of false accounting, and there was no opportunity to recover the damage claim due to the act of embezzlement, barring any such circumstances as the aggravation of

Therefore, the court below should have determined the amount of damages inflicted on the plaintiff by clearly clarifying whether the act of violation of laws or breach of duties, which is the basis for seeking liability for damages, was caused by embezzlement, or was caused by fraudulent accounting act. If the act of embezzlement was caused by embezzlement, how the defendant has been engaged in the embezzlement by Nonparty 2, etc., and how the amount embezzled was specific. If the act of false accounting was caused by the act of false accounting, the court below should have deliberated on the existence of causation between the act of false accounting and the occurrence of damages.

Nevertheless, the court below held that even though the defendant embezzled the company's funds and did not actually lent the funds to the first housing association in Seoul, the company's business expenses of KRW 8.416,158,948, and the Seoul Hongdong housing association with the business expenses of KRW 8.37,000,000 for each false accounting as if it lent the business expenses of KRW 8.337,000,000 to the company's Hongdong housing association, thereby causing damages to the plaintiff. Thus, the court below erred in the misapprehension of legal principles as to causation in the failure to conduct the deliberation or the liability for damages, and such illegality affected the judgment.

3. As to the legal principles on partial claims

Even if a creditor has several damage claims against the same debtor, so long as the damage claims are separate claims different from the time when the damage claims accrue and the cause thereof, they constitute separate subject-matter of lawsuit, and each of them may different defenses asserted by the debtor. As such, the creditor who seeks to bring a lawsuit must specify the amount of the claim for each damage claim, and the court should also specify the amount of the claim for each damage claim, and the same legal principle applies to the case where the plaintiff claims only part of several damage claims (see Supreme Court Decision 2006Da59687, Jun. 28, 2007, etc.).

According to the records, with respect to the lawsuit of this case against the defendant, asserting that the plaintiff sustained damages over three times due to the violation of laws and regulations as the defendant's director, and claiming compensation of KRW 1 billion as an explicit claim among the total damages arising therefrom, the court below specified the total amount of damages by each claim, following the lower court's determination of the total amount of damages by each claim, and without distinguishing the amount of damages of KRW 1 billion which the plaintiff sought as a partial claim from the defendant, the court below comprehensively recognized the amount of damages of KRW 1 billion

However, according to the above facts, at the time of the closing of argument in the court below, it cannot be deemed that the claim was specified because the claim for damages of KRW 1 billion claimed by the plaintiff is unclear as to a certain claim. If so, the court below should have clearly specified the claim in the lawsuit in this case by ordering correction and supplementation by pointed out the incomplete and unclear arguments on the part of the claim in this case sought by the plaintiff by appropriately exercising the right of explanation, and further should have deliberated and determined the legitimacy of the plaintiff's claim.

Nevertheless, the court below did not exercise the right of explanation as to the unclear contents of the plaintiff's claim, and did not divide the amount of individual award based on each damage claim into the defendant, and recognized the amount of damages of 1 billion won in a comprehensive manner against the defendant. Thus, the court below did not err in exercising the right of explanation or incomplete hearing, and it is clear that such illegality affected the judgment.

4. Conclusion

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)