[2] The validity of the assignment of claims with the main purpose of procedural acts, and whether the application for compulsory execution under the Civil Execution Act is also included in the procedural acts in the litigation trust (affirmative)

[3] Whether a resolution of the board of directors under Article 393(1) of the Commercial Act is required for an important business which is not generally and specifically delegated by the board of directors to the representative director, and which does not belong to the daily business (affirmative), and the standard for determining whether it falls under such case

[4] Whether it may be dismissed in a case where the actual time-limit attack and defense does not delay the conclusion of a lawsuit (negative)

1. As to the assertion about the director's self-transaction

A. Article 398 of the Commercial Act provides that a director shall obtain the approval of the board of directors for a transaction between a director and a company. The purport of the provision is to prevent a director from making a transaction with a company by taking advantage of his/her position and promoting his/her own or a third party's profit and causing losses to the company and its shareholders. Thus, monetary lending to a director who is likely to conflict of interest between the company and the director constitutes an act of self-transaction by a director under Article 398 of the Commercial Act. However, if a director lends money to the company without a collateral agreement or interest agreement, such as lending of money to the company, there is no need to obtain the approval of the board of directors.

On October 26, 2004, the court below determined that the act of lending money to the designated party 3 and the company of the plaintiff was null and void as it constitutes a company's own transaction under Article 398 of the Commercial Act.

In light of the above legal principles and the records, the judgment of the court below that the act of the Appointor 3 lending money to the plaintiff company as above requires the approval of the board of directors as a director's own trade under Article 398 of the Commercial Act.

However, the part of the court below's determination that the above monetary loan was null and void on the ground that there is no evidence to prove that the board of directors approved the act of lending money to the designated plaintiff 3 for the following reasons.

Where a part of a juristic act becomes null and void only, the juristic act may be separated or specified in part of the subject matter, and even in the remaining parts, if the party's assumptive intent to maintain it is recognized, only that part shall be null and void, and the remainder shall not be null and void.

In this case, the reason why the Appointed 3 needs approval of the board of directors for the transaction of lending money to the Plaintiff company is that the part of the interest agreement among the monetary transaction agreement is likely to undermine the interests of the Plaintiff company. However, even if the part of the interest agreement becomes null and void and the validity as a loan for consumption with no interest is recognized, the Plaintiff company does not suffer any disadvantage. The reason why the Appointed 3 loaned money to the Plaintiff company is to use it as the operating fund of the Plaintiff company, and it seems that at the time the Selection 3 was necessary to raise the operating fund as an acting representative director of the Plaintiff company as the acting representative director of the Plaintiff company, and it seems that the Selection 3 did not receive interest from the Plaintiff company after the above monetary loan. In light of the above, it is reasonable to deem that the Selection 3 had the intent to maintain the validity as a loan for consumption with no interest even if all the part of the interest agreement becomes null and void. In such a case, the above interest agreement cannot be deemed null and void

Nevertheless, the lower court determined that the entire contract for a loan for money consumption was null and void without examining whether the Defendant (the appointed party, hereinafter “Defendant”)’s assertion that the act of lending money by the designated party 3 is valid as a loan for consumption with no interest-free interest, and that the entire contract for a loan for money consumption was null and void on the ground that the notarial deed drawn up based on the above loan for money consumption did not exist and is null and void. In so doing, the lower court erred by misapprehending the legal doctrine on partial invalidation, thereby affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

B. Meanwhile, the court below held that even if Nonparty 1 lent to the Plaintiff Company the amount of KRW 25 million on June 4, 2003, KRW 5 million on November 4, 2003, KRW 4 million on January 5, 2004, KRW 5 million on January 13, 2004, KRW 3 million on January 30, 2004, KRW 3 million on February 16, 2004, and KRW 25 million on March 24, 2004, the monetary lending was null and void as it constitutes a company’s own transaction without the approval of the board of directors.

As seen earlier, the judgment of the court below that the above monetary lending act is an act that requires the approval of the board of directors of the plaintiff company as a director's own transaction. However, even if the part of the interest loan agreement in the above interest-based monetary loan agreement becomes null and void and its validity is recognized, the plaintiff company did not suffer any disadvantage, and the non-party 1 also lent money to the plaintiff company for the purpose of using it as the operating fund of the plaintiff company, and the non-party 1, who is the representative director at the time, needed to raise its operating fund, and in light of the management status of the plaintiff company at the time, it is reasonable to deem that the plaintiff company and non-party 1 expressed an intention to maintain its validity as a monetary loan with no interest-free loan even if all the part of the interest agreement becomes null and void, the judgment of the court below that the above part

However, in a case where the assignment of claims primarily takes place with the intention of allowing the litigation to be conducted, even though the assignment of claims does not fall under a trust under the Trust Act, Article 7 of the Trust Act shall be deemed null and void by analogy (see Supreme Court Decision 2000Da4210, Dec. 6, 2002). The litigation act in a litigation trust refers to the act of widely promoting the realization of rights through a judicial institution, not limited to the litigation act under the Civil Procedure Act, and includes an application for compulsory execution under the Civil Execution

According to the reasoning of the judgment below and the records, Nonparty 1 transferred a loan claim against the Plaintiff Company to the 3-party 2, in which a dispute over the management right of the Plaintiff Company arises with Nonparty 2, and let the 3-party 3 prepare a notarial deed based on the acquisition money claim and then transfer the loan claim to the Plaintiff Company for the purpose of collecting the claim from the Plaintiff Company through compulsory execution based thereon.

Therefore, the act of Nonparty 1 transferring each of the above loans to the Selection 3 is deemed null and void because it constitutes a litigation trust with the main purpose of enabling the Selection 3 to conduct the procedural acts of filing an application for compulsory execution. Thus, the court below's decision is just in its conclusion that the court below rejected compulsory execution based on the above notarial deed, and that the Selection 3 has the obligation to return dividends acquired by the Selection 3 through compulsory execution based on the above notarial deed to the plaintiff company as unjust enrichment, and therefore, the judgment below's error as above is not erroneous in the misapprehension

2. On whether the business is in need of a resolution of the board of directors

Article 393(1) of the Commercial Act states that the board of directors of a stock company has the authority to make a decision on the management of the company by prescribing that the disposal and transfer of important assets of a stock company, the conduct of business of a large-scale loan, etc. shall be subject to a resolution of the board of directors concerning the disposal of important assets of a stock company, the conduct of borrowing large-scale assets, and the conduct of business of a company. Thus, whether the company is an important business not belonging to ordinary business, such as disposal of important assets or borrowing large-scale assets, which is not entrusted to the representative director generally and specifically, shall be determined by the resolution of the board of directors. Whether it is an important business not belonging to ordinary business, such as disposal of important assets or borrowing of large-scale assets, the ratio of the company's total assets to the total assets, the size of the company

The court below held that the preparation of each of the notarial deeds of this case shall be subject to a resolution of the board of directors as important business not belonging to the disposal of important assets of the plaintiff company, or the representative director's daily business, in light of the size of the plaintiff company's assets and liabilities, total amount of obligations under each of the notarial deeds of this case, time when the notarial deed of this case was made and when compulsory execution based on the notarial deed of this case is carried out, the impact on the plaintiff company if execution based on the notarial deed of this case, management status of the plaintiff company, etc., and that it is reasonable that the defendant and the selected knew or could have known that the resolution of the board of directors of the plaintiff company on the preparation of the notarial deed of this case was not made. The court below held that each of the notarial deeds of this case of this case of this case of this case is null and void on the grounds that it

However, the act of preparing notarial deeds based on the loan claims against the plaintiff company by 1 and 2 is not an act of bearing a new debt, but an act of granting an executory power to the existing debt, and it shall be deemed an act of ordinary execution granted to the representative director. Thus, the resolution of the board of directors is not required for the preparation of such notarial deeds

Nevertheless, the court below determined that the above notarial deed was null and void on the ground that Nonparty 1 prepared the notarial deed without a resolution of the board of directors. In this case, the court below erred by misapprehending the legal principles on the scope and validity of the representative director's business execution, which requires a resolution of the board of directors, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error

3. As to the assertion such as abuse of right to ask for clarification

A. According to the records, even if a commissioned judge referred to the validity of a director's self-transaction during the preparatory date for pleading on January 23, 2009, as the defendant's assertion was made, it is apparent that the Plaintiff's act of acting as a representative director or as a representative director on January 11, 2008, which was stated at the preparatory date for pleading prior to the preparatory date for pleading on January 23, 2009, was null and void. Thus, even if a commissioned judge mentioned the validity of a director's self-transaction at the preparatory date for pleading on January 23, 2009, it cannot be said that he abused his right of explanation or

B. The court may dismiss the means of offence or defense which was submitted late at the time of the party’s intention or gross negligence when it is acknowledged that the conclusion of the lawsuit would be delayed. This is not only in the form of an independent decision, but also in the form of a decision, which may be determined by the method of a decision among the reasons for the judgment. However, even if the method of offence or defense is an actual time-limit, if the continuation of the date is required, and the deliberation of the means of offence or defense can be completed within the scope of the continuance date, or if the contents thereof are included within the scope of the litigation materials which have already completed the trial, it shall not be deemed that the completion of the lawsuit is not delayed (see, e.g., Supreme Court Decision 9Da53742, Apr.

According to the records, even though the plaintiff's assertion as to his own transaction had been filed more than two years after the lawsuit of this case was filed, there was no delay in the lawsuit due to the plaintiff's assertion since the date for preparatory pleading and the date for preparatory pleading continued after the plaintiff's assertion was filed and the pleading was concluded on April 24, 2009, and there was no delay in the lawsuit due to the above assertion. Thus, the court below did not err in the misapprehension of law since the court below did not dismiss the plaintiff's assertion by deeming the plaintiff's above assertion as a means for real-time attack and defense, and the court below's decision on the plaintiff's own transaction as to the plaintiff's assertion as to the plaintiff's own transaction constitutes a means for real-time attack and defense. Thus, there was no error in the misapprehension

4. As to the remaining grounds of appeal

The defendant's remaining grounds of appeal are merely grounds for the selection of evidence and fact-finding which belong to the exclusive jurisdiction of the court below, and they cannot be viewed as legitimate grounds of appeal. Thus, we cannot accept the allegation.

5. Conclusion

Therefore, among the part against the defendant in the judgment of the court below, the part against the Appointed 1, the part against the Appointed 3 as to the claim for return of unjust enrichment related to the No. 572 of the notarial deed in the 21st century, and the part against the Appointed 2005, respectively, are reversed, and this part of the case is remanded to the court below for a new trial and determination. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)