Whether a company bears the burden of reprimand under Article 395 of the Commercial Act in a case where the company permits or neglects the use of the name of the representative director (affirmative)

In cases where a company permits or neglects the use of the name of representative director to a joint representative director who can jointly represent the company, the company shall not be exempted from liability to express under Article 395 of the Commercial Act, as in cases where the company allows a person who is not qualified as a director to use the name of representative director or allows the person to use the name without being qualified as a director.

Articles 395 and 389 of the Commercial Act (Article 208)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law No. 1985, 995) (Law No. 1987, 1319, Oct. 25, 1988) (Gong1988, 1467)

Plaintiff

[Defendant-Appellant] Cho Nam-dong, Inc., Counsel for defendant-appellant-appellant-appellant

Daegu High Court Decision 90Na2926 delivered on May 2, 1991

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. The court below's decision, which rejected the defendant's assertion that the date and time of loan and the date of joint and several sureties from No. 2 (the tea certificate, No. 26) were forged later, is just in light of the records, and there is no violation of the rules of evidence or an incomplete hearing.

2. In full view of the evidence, the court below held that, in the joint and several guarantee by Nonparty 2, the debt owed by Nonparty 1 as stated in the above evidence No. 2 (j) was done not by an individual but by a representative director of the defendant company. In light of the records, the judgment of the court below is just and there is no violation of the rules of evidence or incomplete hearing.

3. According to the reasoning of the judgment below, the court below rejected the defendant company's assertion that the above non-party 2's joint and several surety for the above debt amounting to 38,00,000 won borrowed from April 7, 1989 and the joint and several surety act of 38,00,000 won was necessary directly or indirectly for the defendant company's execution of the work ordered under the name of the defendant company by the non-party 1, who actually engaged in the business activities of the defendant company, and the non-party 3's provisional seizure against the non-party 1's claim for the construction fund amounting to 65,00,000 won against the non-party 1's sexual branch of the defendant company's non-party Korea Electric Power Corporation's sexual branch, and therefore, it did not err in the misapprehension of legal principles as pointed out in light of the records.

4. According to the reasoning of the judgment below, the court below rejected the defendant company's assertion that the above joint and several sureties performed by the defendant company would considerably lose fairness in the defendant company's poor condition. In light of the records, the judgment of the court below is justified and there is no error of law by misunderstanding the legal principles as to unfair legal acts or by misunderstanding the rules of evidence.

5. In a case where a company allows a person disqualified as a director to use the name of expressed representative director, or where the company knowingly knows that he/she uses the name without the qualification as a director, the company cannot be held liable for expression pursuant to Article 395 of the Commercial Act (see Supreme Court Decision 86Meu1228, Oct. 25, 198). The same applies to a case where the company allows or neglects the use of the name of the representative director to the joint representative director.

According to the reasoning of the judgment below, the court below determined that the defendant company was to represent only the above non-party 2 and the non-party 4 jointly by a resolution of the board of directors around November 198, and completed the registration on December 2 of the same year. The above registration was resigned on April 26, 1989 and continued until the cancellation of the joint representative was registered on May 2 of the same year, the above non-party 2 had been registered as joint representative, despite the fact that the above non-party 2 independently used the name of the representative director of the above Korea Electric Power Corporation's sexual branch and electrical construction contract on behalf of the defendant company, and it was confirmed that the above non-party 2 did not act on behalf of the defendant company by using the name of the representative director of the above Korea Electric Power Corporation. In light of the above fact that the defendant company did not act on behalf of the non-party 2 as joint representative, the court below's decision was just in the misapprehension of legal principles as to the defendant company's joint and several liability as the defendant company's joint and several representative.

6. The judgment of the court below rejected the defendant company's assertion on the ground that there is no evidence to support that the joint and several guarantee of the defendant company in this case requires a resolution at the general meeting of shareholders or the board of directors of the defendant company. In light of the records, the above judgment of the court below is not erroneous in the misapprehension of legal principles as to the resolution

7. In light of the records, the judgment of the court below is justified and there is no violation of the rules of evidence against the rules of evidence in light of the records, since the defendant company lost the interest in installment payment due to the failure to repay the principal and interest as provided by the evidence No. 2 (Evidence). The argument is without merit.

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

Justices Kim Yong-sung (Presiding Justice)