2014Da222596 Unlawful gains

The Bankruptcy Trustee A of the Bankrupt Corporation

1. B

2. C

Seoul High Court Decision 2013Na2027648 Decided August 28, 2014

September 10, 2015

The part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to the Seoul High Court.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. In a case where a person appointed as a director or auditor in a general meeting of members of a limited liability company takes office as a director or auditor upon entering into a contract with the company, he/she may receive remuneration by the amount, time, method of payment, and payment determined by the articles of incorporation or general meeting of members pursuant to Articles 388 and 567 of the Commercial Act. In light of the foregoing, even if a director or auditor appointed in a general meeting of members comprehensively delegates his/her duties to other directors, etc. in accordance with the explicit or implied agreement with the company, and fails to perform a substantial duty as a director or auditor, he/she shall be held legally liable as a director or auditor under Articles 399, 401, and 567 of the Commercial Act. Thus, the validity of a resolution of a general meeting of members that appoints or determines the director or auditor is invalid, or the above passive duty performance is different from the duty scheduled in appointing the director or auditor at the general meeting of members, and thus, it is difficult to deny the qualification of director or auditor as a general meeting of members or to deny the effect of the resolution.

2. The court below, based on the adopted evidence, found that ① A (hereinafter referred to as “A”) established or acquired a special purpose corporation by means of lending another person’s name and recording it as a shareholder or officer in order to avoid the mutual savings bank limit, and conducted real estate development projects directly with the funds of the special purpose corporation; D Co., Ltd. (hereinafter referred to as “D”) was one of the special purpose corporations established or acquired for this purpose; ② the Defendants were appointed as a director or auditor and completed the registration and completed the registration, and the Defendants were paid the fees of KRW 1,00,000 to KRW 1.5 million per month from D, but did not perform the actual duties as a director or auditor according to D’s instruction, and determined that D’s right to claim remuneration was only performed by the Defendants, and thus, the Defendants did not have the right to claim remuneration from D without having received it from D, as the Defendants did not perform the actual duties as a director or auditor.

However, in light of the reasoning of the lower judgment and the record, the Defendants, as directors or auditors appointed and registered in the general meeting of members, bear legal responsibilities as prescribed in Articles 399 and 401 of the Commercial Act, and even if they did not actively perform their duties, they can comprehensively delegate their duties to A and perform incidental duties under the name of director or auditor.

Examining these circumstances in light of the aforementioned legal principles, if the Defendants received remuneration in accordance with the requirements prescribed in Articles 388 and 567 of the Commercial Act, barring special circumstances, the Defendants’ right to claim remuneration is not denied on the ground of the Defendants’ passive performance of duties, barring special circumstances, such as where the resolution of a general meeting of shareholders or a resolution of payment of remuneration by a member appointed as a director or auditor is null and void, or where the above passive performance of duties is contrary to the contents of duties proposed in the general meeting of members by appointing the director or auditor at the general meeting of members, thereby violating the resolution of appointment

Nevertheless, the lower court denied the Defendants’ right to claim remuneration against D for reasons indicated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the right to claim remuneration for directors and auditors of a limited liability company, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Therefore, without examining the remaining grounds of appeal, the part of the judgment below against the Defendants is reversed, and that part of 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 Yong-deok

In-bok

Justices Go Young-young

Justices Kim In-young