Where a representative of a corporation has committed a tort against a corporation, the starting point and method of determining the short-term statute of limitations for the claim for damages due to a tort / Where a corporation exercises the right to revoke the claim for damages against the representative of a corporation due to a tort, whether the same applies to determining the starting point of the exclusion period (affirmative)

The starting point of the short-term extinctive prescription of a claim for damages due to a tort is the date when the representative becomes aware of the damage and the perpetrator, and in the case of a corporation, the date when the representative becomes aware of the damage and the perpetrator. However, if the representative of the corporation commits a tort against the corporation, the profit of the corporation and the representative of the corporation is contrary to the interests of the representative, so it is difficult to expect the representative of the corporation to exercise the right to claim damages therefrom, and the representative of the corporation is generally denied the right of representation, and thus it is insufficient to recognize the damage and the perpetrator. Therefore, in such a case, the short-term extinctive prescription is proceeding only when the representative, officer, or employee who has the authority to properly preserve the profit of the corporation becomes aware of the fact that the other representative, officer, or employee has the authority to claim damages, and if other representative or officer has jointly committed a tort, the starting point of the short-term extinctive prescription period should be determined. This is also the same when determining the “date when the cause for revocation,” which is the starting point of

Articles 406(2) and 766(1) of the Civil Act

Supreme Court Decision 98Da34126 Decided November 10, 1998 (Gong1998Ha, 2845) Supreme Court Decision 2012Da20475 Decided July 12, 2012 (Gong2012Ha, 1416)

Plaintiff

Defendant 1 and three others (Law Firm Tae, Attorneys Kim Jong-chul et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2012Na9180, 9197 decided May 15, 2013

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. The short-term extinctive prescription of a claim for damages due to a tort is proceeding from the date when the representative becomes aware of the damage or the perpetrator, and in the case of a corporation, the date when the representative becomes aware of the damage or the perpetrator. However, if the representative of the corporation committed a tort against the corporation, the profit of the corporation and its representative is contradictory to the profit of the corporation, so it is difficult to expect the representative of the corporation to exercise the right to claim damages therefrom, and in general, it is not sufficient to deny the power of representation. Therefore, the short-term extinctive prescription is run only when the representative of the corporation becomes aware of the damage or the perpetrator so that other representative, executive, employee, or employee who has the authority to properly preserve the profit of the corporation can exercise the right to claim damages. Accordingly, if another representative or executive has jointly committed a tort with the representative of the corporation, the other representative, executive, and the date when the short-term extinctive prescription period is set out (see Supreme Court Decisions 98Da34126, Nov. 10, 1998; 200Da245, etc.).

2. Based on its stated reasoning, the lower court rejected the Defendants’ defense that the extinctive prescription of the right to claim damages against Defendant 1 and 3 by deeming that the Nonparty, the Nonparty, who was the head of the real estate development team of the Plaintiff or the rice leisure, did not constitute an officer or employee with the authority to properly preserve the interests of the rice and leisure, was expired, on the grounds that the Plaintiff’s joint representative director of the rice and leisure was not an auditor of the rice and leisure industry Co-Defendant Co-Defendant Co-Defendant Corporation (hereinafter

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, we affirm the judgment below as just and there is no error of law such as misunderstanding of legal principles as to the starting point of the short-term extinctive prescription of claim for damages caused by tort, or misunderstanding of facts due to

3. The court below held that the legal principle on the starting point of the short-term extinctive prescription in a case where the representative of a corporation committed a tort against the corporation should be applied equally to the starting point of the exclusion period in the case where the corporation exercises the right of revocation by making the right of revocation as the right to claim damages against the representative of the corporation due to the tort of the representative of the corporation as the right to preserve the right to claim damages against the representative of the corporation. The court below held that the other officers or employees with the authority to properly preserve the interest of the rice leisure shall be the starting date of the exclusion period, instead of the fact that the representative of

Examining the reasoning of the judgment below in light of the aforementioned legal principles and records, we affirm the judgment below as just and there is no error in the misapprehension of legal principles as to the starting point of the exclusion period for obligee's right of revocation, or in violation of the rules of evidence.

In addition, in light of the above legal principles, inasmuch as Defendant 1 and 3, who is the joint representative director of the rice leisure, committed an illegal act of embezzlement of the fund of the rice leisure, and the right of revocation is exercised by designating the right to claim damages against Defendant 1 and 3 as the right to claim damages against Defendant 1 and 3, even if Defendant 1 and 3 knew that the other party committed an act that is the cause of revocation, they cannot be considered as the starting point of the exclusion period. Thus, even if the court below did not decide on the assertion, it cannot be said that there was an error of law that affected the conclusion of the judgment by omitting judgment.

4. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)