Whether a director may exercise the right to indemnity against the company or request the return of the profit where a director obtains a loan under the name of the company by forging a written resolution of the board of directors to be used for his/her business together with the representative director and becomes a joint and several guarantor and the loan is repaid as a joint and several guarantor

If a director or representative director of a company uses a debt resolution of the board of directors of the company with the intention of using it for his own business, and obtains a loan under the name of the company, and then becomes a real guarantee and joint guarantor with the above representative director, and if the above director repaid the loan as a joint guarantor, it would not be the performance of the obligation of the above representative director and the above representative director. Therefore, even if the company uses the above loan, it cannot be effective in relation to the company at least in relation to the company, and unless it is ratified by the resolution of the board of directors, it is sufficient that the director can not exercise the right to indemnity due to the above company or claim the return of the profit.

Articles 425 and 741 of the Civil Act

Plaintiff

Defendant Stock Company

1.2 1.2

Seoul High Court Decision 91Na10307 delivered on October 23, 1991

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below, based on the evidence, found that the defendant company was established and the non-party 1 was appointed as representative director and director, and the plaintiff and the non-party 1 were to use for their own business, and obtained a loan under the name of the defendant company from the non-party Dong Dong Mutual Savings and Finance Company in the name of the defendant company and recognized the fact that the plaintiff became a water guarantee and a joint guarantor with the non-party 1. In light of the records, the court below's fact-finding is just and there is no violation of the rules of evidence or incomplete

In addition, if the facts are the same, even if the plaintiff repaid the above loan as a joint and several surety, it would be nothing more than the repayment of the obligation of himself and the non-party 1. Therefore, the repayment cannot take effect at least in relation to the defendant company, and even if the defendant company used the above loan, unless it is lawfully ratified by the resolution of the board of directors, etc., the defendant company, even though it has used the above loan, it shall not be able to exercise the right to reimbursement or claim the return of the profit immediately to the defendant company. Therefore, the judgment of the court below to the same purport is just and there is no error of law by misunderstanding the legal principles as pointed out or by an omission

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.

Justices Kim Yong-sung (Presiding Justice)