Whether an expression director under Article 401-2(1)3 of the Commercial Act requires that he/she be a person having influence over the company (negative)

In the application of Articles 399, 401, and 403 of the Commercial Act, with respect to a person who is deemed a director, Article 401-2(1)1 of the Commercial Act provides that “a person who instructs a director to conduct business by using his own influence over the company,” Article 401-2(1)2 of the Commercial Act provides that “a person who directly conducts business in the name of a director,” “a person who directly conducts business in the name of a director,” and Article 401-2(1)3 of the Commercial Act provides that “a person who performs business in the name of a director, other than a director, using a name which is deemed to have authority to conduct business, such as honorary chairperson, president, vice president, managing director, managing director, director, or any other name which is deemed to have influence on the company, although subparagraphs 1 and 2 of the same Article provides that a person in the name of a

Article 401-2 (1) of the Commercial Act

Plaintiff, Ltd.

Defendant (Attorney Nam-chul et al., Counsel for defendant-appellee)

Seoul High Court Decision 2008Na103443 decided May 8, 2009

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

In the application of Articles 399, 401, and 403 of the Commercial Act, with respect to a person who is deemed a director, Article 401-2(1)1 of the Commercial Act provides that "a person who instructs a director to conduct business by using his own influence over the company," Article 401-2(1)2 of the Commercial Act provides that "a person who directly conducts business in the name of a director," and Article 401-2(2)3 of the Commercial Act provides that "a person who directly conducts business in the name of a director," "a person who is not a director, or a person who conducts business by using a name which is deemed to have authority to conduct business affairs, such as honorary chairperson, president, vice president, managing director, managing director, director, or any other person who performs business affairs," and subparagraphs 1 and 2 of Article 3 of the Commercial Act provides that a person who is presumed to have influence over the

According to the records, the defendant promoted from January 1, 1999 to a director (non-registration) who is an officer of the non-party 1 corporation and served until December 27, 200, and the defendant conspired with the non-party 2, etc. in sequence with the chairperson of the ○○ Group to make a false statement of the financial statements for the third period (1998 fiscal year) of the non-party 1 corporation from January 1, 199 to February 199. Thus, in light of the above legal principles, the court below is just in holding that the defendant constitutes an expression director under Article 401-2 (1) 3 of the Commercial Act, and there is no error in the misapprehension of legal principles as to the liability of the business manager, etc. as otherwise alleged in the ground of appeal.

Therefore, the appeal is 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 Lee Hong-hoon (Presiding Justice)