(a) Liability to express a company under Article 395 of the Commercial Act where a company lets a person disqualified as a director use the name of Apparent representative director or is in a allowed state;

(b) Responsibility to express the company where a director using the name of the representative director acts by using the name of another representative director;

(a) In cases where a company allows a person disqualified as a director to use the name of the representative director, or where the company knowingly knows that he/she uses the name without qualification as a director, the company shall not be exempted from liability to express under Article 395 of the Commercial Act;

B. Article 395 of the Commercial Act applies to cases where a director using the name of expressed representative director acts under his/her own name as well as where the actor acts using the name of another representative director.

Article 395 of the Commercial Act

Busan District Court Decision 200Na11488 decided May 1, 200

Sung Industrial Co., Ltd., Counsel for the defendant-appellant

Seoul High Court Decision 76Na2380 delivered on November 24, 200

The original judgment is reversed, and the case is remanded to the Seoul High Court.

The grounds of appeal by the Plaintiff’s attorney are examined.

The comparison of facts established by the original judgment is as follows. In other words, the non-party 1 was the representative director non-party 2's fraud. The non-party 1 was the representative director non-party 2's office, who was the director's office from the Chang city of company (the registration of incorporation on August 30, 69) to the office of directors, and the head of the Seoul office concurrently held the office of office in Seoul, and was exclusively in charge of the sale, etc. of the company's life and death, etc. at the actual contract stage, the non-party 2 was a representative director, not his own name, in the actual contract stage. However, the non-party 1 resigned from the office on December 7, 74 and registered until December 18, 12.18, he was the director on February 6 and March 10, 75, and entered into a life and death contract with the plaintiff company in the name of the representative director non-party 2, and the defendant company was almost implementing this.

On August 8, 198, which was concluded between the plaintiff company and the non-party 2 in the same manner, in the name of the representative director of the sexual assistant company, the name of the non-party 2, who claimed the managing director in the name of the non-party 2, was at issue in this case, and on August 8, 2008, the sexual assistant company made the registration of the change of the name to sexual assistant company (non-party 2 to the representative director).

The lower court determined as follows. In other words, even if Nonparty 1 claimed that he was a managing director of the Defendant Company, even if he claimed that he was a managing director of the Defendant Company, the Nonparty was not a director of the Defendant Company at that time, and the Nonparty merely concluded a contract under the name of Nonparty 2 by pretending that he was entitled to represent the representative director, rather than merely concluding a contract under the name of Nonparty 2, by claiming that he was not a managing director of the Defendant Company, and that he was not a representative director of the Defendant Company, and that the assertion based on the premise that he claimed that he was entitled to represent the Defendant Company, was groundless without examining other points.

Article 395 of the Commercial Code provides that when a director has become aware of the company's power of representation with respect to an act of a director using a name which might be mistaken for the company's power of representation from outside, the company shall be held responsible for the company in view of the act of a bona fide third party, such as the act of a director who has a power of representation, and therefore, the company shall be held liable for the company from the spirit of the theory of appearance.

In this regard, this Article requires that the Apparent representative director be qualified as a director, but it should be interpreted that the company allows a person who is not in substance qualified as a director to use the Apparent representative director's name, or if the company knew that it uses the Apparent representative director's name without being qualified as a director's qualification and without taking any measures, it cannot be seen that there is sufficient reason for the use of the Apparent representative director's name. In this case, it is also appropriate to the purport of the legislation. In addition, as long as the Apparent representative director's name is performed under his own name, even if the Apparent representative director's name is the Apparent representative director's name, this Article shall apply to the Apparent representative director's act using the Apparent representative's name. Accordingly, in light of these legal principles, the Fictitious representative director's 10,000 won cannot be applied to the Apparent representative director's 70,000 won - 17,000 won - 17,000 won - - 7,01,000.

Therefore, there is no misunderstanding of the legal principles on the original judgment which understood this contrary.

In addition, considering the relationship between Article 395 of the Commercial Code and the commercial registration, this Article should be construed as a provision recognizing liability for expression of a company at a different level from the commercial registration, and therefore this responsibility should not be included in the subject of consideration. Therefore, the judgment that the original judgment considered the plaintiff's bad faith on the change of the defendant's trade name due to the change of the name of the defendant company should be prior to the legal principle that does not recognize as a party member.

The court below's finding that the plaintiff company was aware of the resignation of the non-party 1 is admissible as evidence that the non-party 3 of the defendant regular executive director informed the non-party 1's resignation to the members in charge of the plaintiff company in the first place of this case ("75 February 6, 75 and 3.10). However, since the company's bad faith is decided against the representative director, it cannot be said that there is another misunderstanding of legal principles in the above finding (the plaintiff company's retirement from non-party 1 and the change of the name of the defendant company cannot be deemed to be prior to September 28, 75). Accordingly, the judgment of the court below cannot be deemed to be prior to the "75.9.28" (the judgment of the court below cannot be deemed to be the case where the plaintiff company becomes aware of the retirement of the non-party 1 and the change of the name of the defendant company by misunderstanding the legal principles of Article 395 of the Commercial Act,

It is so decided as per Disposition by the assent of all participating Justices on the bench to return the case to the original court for a new trial and determination.

Justices Kang Jeong-hee (Presiding Justice)