[1] Requirements for imposing liability under Article 395 of the Commercial Act on a company for an act of a person appointed as a representative of the resolution of the general meeting of shareholders who prepared the minutes only without holding the meeting

[2] In a case where a person who does not have the authority to appoint directors prepares and appoints directors by means of a false resolution of a general meeting of shareholders, whether the company can be held liable for the representative director under Article 395 of the Commercial Act (negative in principle)

[1] Article 395 of the Commercial Act / [2] Article 395 of the Commercial Act

[1] Supreme Court Decision 91Da14369 delivered on August 18, 1992 (Gong1992, 2730) / [2] Supreme Court Decision 2006Da24100 Delivered on July 24, 2008 (Gong2008Ha, 1221)

Hong Rarust Co., Ltd. (Attorney Lee Im-soo, Counsel for the plaintiff-appellant)

Defendant

Daejeon District Court Decision 2010Na2365 Decided February 17, 2011

The part of the judgment below regarding the claim for cancellation of ownership transfer registration is reversed, and that part of the case is remanded to the Daejeon District Court Panel Division. The remaining appeal by the plaintiff is dismissed.

The grounds of appeal are examined.

1. Part demanding the cancellation of ownership transfer registration;

A. As to the first ground for appeal

The decision of the court below as to whether the contract of this case was properly made by the defendant during the preparatory date for pleading in the court of first instance on the ground that the defendant's statement that the contract of this case is valid as an expression agent is an assertion as to the representative director's liability under Article 395 of the Commercial Act is acceptable, and there is no error of law such as misunderstanding

B. As to the grounds of appeal Nos. 2, 3, and 4

(1) Under Article 395 of the Commercial Act, the company is liable for the act of a representative of speech by explicitly or implicitly approving the use of the name of representative of speech. Thus, if a company is responsible for the act of a representative of speech without convening or holding a general meeting of shareholders with respect to an act of a representative of the meeting who is appointed as a representative of the meeting without convening or holding the meeting, it shall be recognized that there is a cause attributable to the company for the occurrence of the appearance of representative qualification by preparing the minutes (see, e.g., Supreme Court Decision 91Da14369, Aug. 18, 192). In addition, if a person without authority to appoint a director prepares a false minutes of the general meeting of shareholders to make the appearance of the general meeting of shareholders, and appoints a director based on them, the holding and resolution of the general meeting of shareholders exist, but the internal decision-making of a director of the company with respect to the appointment does not exist, and thus, the company cannot participate in the present appearance of the representative director of the company without legitimate cause or omission.

(2) According to the reasoning of the judgment below and evidence duly admitted by the court below, ① The non-party 2 was established with the total number of 30,00 shares issued by the plaintiff 1 and the non-party 2 as 60,00 shares (51%) the non-party 2 as 12,00 shares (20%) the non-party 3 as 9,00 shares, and the non-party 4 as 8,40 shares (14%) the non-party 6 shareholders' shares were registered with the non-party 2 as the non-party 6 shareholders' 7 shareholders' ; ② the non-party 5 shareholders' 6 shareholders' shares were non-party 1 and the non-party 2's 6 shareholders' 7 shareholders' 6 shareholders' shares were non-party 1 and the non-party 3's 6 shareholders' 40% shares were non-party 1 and the non-party 2's shareholders' 60% shares shares were non-party 40% shares (66% shares).

(3) If circumstances are the same, the resolution of the general meeting of shareholders of the Plaintiff Company was entered as a shareholder who owns 51% of the shares in the Plaintiff Company’s register, and without Nonparty 1’s consent presumed to be a legitimate shareholder, Nonparty 5 voluntarily transferred the ownership as above and then did not exist without the convocation and holding of the general meeting of shareholders. Thus, the sales contract of this case concluded by Nonparty 6 who is not legally entitled to represent the Plaintiff Company is null

In addition, according to the above legal principles, there was no internal decision-making such as the resolution of the general meeting of shareholders of the Plaintiff company on the appointment of Nonparty 6 as a director of the Plaintiff company, and there was no evidence to recognize that Nonparty 1, the legitimate representative director of the Plaintiff company at the time, was involved in the above act of Nonparty 5 or did not know that Nonparty 6 was appointed a director, and there was no evidence to find that Nonparty 5 was entitled to exercise the right equivalent to 49% of the shares issued by the Plaintiff company through the remaining shareholders other than Nonparty 1, the mere fact that Nonparty 5 was able to exercise the right equivalent to 49% of the shares issued by the Plaintiff company through the other shareholders than Nonparty 1 cannot be said to be the same as the cause attributable to Nonparty 6’s appearance of the Plaintiff’s director’s qualification.

(4) Nevertheless, the lower court determined that the Plaintiff Company shall be liable for the instant sales contract in accordance with the legal doctrine under Article 395 of the Commercial Act, inasmuch as Nonparty 5, who actually operated the Plaintiff Company and Nonparty 6 had the authority to represent the Plaintiff Company, had the appearance of the resolution of the general meeting of shareholders as if Nonparty 6 had the authority to represent the Plaintiff Company, was attributable to the Plaintiff Company. In so doing, the lower court erred by misapprehending the legal doctrine on the responsibility of representative director under Article 395 of the Commercial Act, which affected the remainder of the judgment.

Therefore, this part of the lower judgment cannot be reversed without further proceeding to decide on the remainder of the grounds of appeal.

2. Part on the claim for refund of stored money

The meaning of the storage money in this case is a matter of interpretation between the parties, and should be reasonably interpreted in accordance with logical and empirical rules by comprehensively taking into account the content of the agreement between the parties, the motive and background leading up to the agreement, the purpose to be achieved by the agreement, the parties’ genuine intent, transaction practices, etc. (see Supreme Court Decision 2006Da9408, Dec. 27, 2007, etc.).

According to the reasoning of the judgment below and evidence duly admitted by the court below, (1) around May 206, 2006, Plaintiff Company: (3) obtained the loan of KRW 1,35,000,000,000 from 3,000,000,000,000 won for the land and above ground factory buildings owned by the Plaintiff Company (hereinafter “instant factory”); (4) borrowed KRW 1,44,00,000,00 from 6,000,000 from 3,00,000,000,000,000,000 won; (5,000,000,000,000,000,000 KRW 6,000,000,000 from 6,000,000,000,000,000,000,00 won (hereinafter “the Defendant’s joint and several 3,006,06,00.

If the facts are the same, it is reasonable to view that the plaintiff company paid the advance reimbursement to the defendant who is in the position of the trustee guarantor rather than simply storing and replacing the defendant with the amount of KRW 30 million. Therefore, if the defendant did not actually use the principal and interest of the loan of KRW 30 million for the reason that he did not pay the principal and interest of the loan of KRW 30 million, the plaintiff company may not claim the return of the loan of KRW 30 million against the defendant, regardless of the fact that the defendant did not claim compensation for damages on the ground that he did not pay the remainder of the loan of KRW 30 million. However, if the plaintiff company exempted the defendant by paying the principal and interest of the loan of KRW 30 million,000,000,000 to the defendant with the full repayment of the principal and interest of the loan of KRW 30 million,000,000,000,000,000 as of the closing date of pleadings in the court below.

Although the reasoning of the court below on this part is somewhat inappropriate, it is just in the conclusion that rejected the plaintiff company's claim, and there is no error in the misapprehension of legal principles as to the interpretation of a storage agreement and the principle of pleading, as otherwise

3. Conclusion

Therefore, the part of the judgment below regarding the claim for cancellation of ownership transfer registration is reversed, and that part of the case is remanded to the court below for a new trial and determination. The plaintiff's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yang Chang-soo (Presiding Justice)