[1] The meaning and method of determining "act within the scope of purpose under the articles of incorporation that limits the company's legal capacity

[2] Whether a company's guarantee on behalf of the principal debtor in a transaction relation or capital relation is an act within the purpose scope of the company (affirmative with qualification)

[3] Where the representative director of a corporation without a resolution of the board of directors conducts an act of self-transaction which requires a resolution of the board of directors, the validity of the transaction (effective validity) and the burden of proof of bad faith of the other

[1] Article 34 of the Civil Act, Article 289(1) of the Commercial Act / [2] Article 34 of the Civil Act, Article 289(1) of the Commercial Act / [3] Articles 393(1) and 398 of the Commercial Act, Article 288 of the Civil Procedure Act

[1] Supreme Court Decisions 86Meu1384 delivered on January 19, 198 (Gong198, 445 delivered on November 22, 1991) 98Da2488 delivered on October 8, 199 (Gong1999Ha, 2280), 200Da98 delivered on September 21, 200, 59 (Gong2002Sang, 5199, 51999) 209Da9797 delivered on December 29, 197 (Gong198, 1969, 5197) 209Da39799 delivered on December 11, 1984 (Gong198, 165, 197).

Dongmun Information and Communications Co., Ltd. (formerly: Chang Information and Communications Co., Ltd.)

Seoul Guarantee Insurance Co., Ltd. (Law Firm Pull, Attorneys Choi-ju et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2004Na9345 delivered on December 10, 2004

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

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

1. We examine the grounds of appeal Nos. 1, 2, and 3.

The legal capacity of a company is limited by the law that served as the basis for the establishment of the company and the purpose of its articles of incorporation, but acts within the scope of the purpose is not limited to the purpose itself specified in the articles of incorporation, but to the purpose of the company's performance, and whether direct and indirect necessary acts are all included and necessary for the achievement of the purpose should be determined according to the subjective and objective nature of the act itself, not a specific intent (see, e.g., Supreme Court Decisions 86Meu1384, Jan. 19, 198; 91Da8821, Nov. 22, 1991). In such judgment, it shall be sufficiently considered as a profit-making corporation that engages in a transaction as a business, and the safety of transaction that takes the characteristic, swift and emotional formation of the company is required, and it is reasonable to deem that the act of guaranteeing the principal debtor in a transaction relation or capital relation is within the scope of the company's objective in light of the objective nature of the act, regardless of whether it can be invalidated.

According to the reasoning of the judgment below, in order to obtain permission for annual payment of inheritance tax imposed on the plaintiff company's shares, etc. due to the death on the part of the deceased company's company's representative director, the majority shareholder, the representative director of the plaintiff company, and his family members, in entering into the tax payment guarantee insurance contract with the defendant for the purpose of obtaining permission for annual payment of inheritance tax, such as the plaintiff company's shares, etc., which had been the former representative director, the act of the plaintiff company bearing the joint and several liability obligations against the defendant for the above defendant (hereinafter referred to as "joint and several liability insurance contract of this case") shall be deemed null and void as an act outside the scope of legal capacity beyond the scope of purpose under the articles of incorporation of the plaintiff company's invalid joint and several liability contract, and the plaintiff company's assertion that the plaintiff company's joint and several liability contract of this case was null and void. The court below rejected the plaintiff company's decision as an unlawful act in violation of the legal principles as to the objective of the plaintiff company's joint and several liability insurance contract of this case or as an unlawful act in the court's reasoning.

In addition, as long as the above judgment of the court below is justified, the part of the court below's decision that the plaintiff company's act of joint and several surety in this case is invalid on the ground that the plaintiff company prepared a letter of debt repayment concerning the performance of the joint and several surety obligation in this case to the defendant after the above acceptance was made as the representative director of the plaintiff company, is merely an additional statement in addition to the above main judgment, and it cannot affect the conclusion of the judgment, and thus, the ground of appeal on the ground that the above judgment of the court below was erroneous cannot be accepted.

2. We examine the fourth ground for appeal.

Even if the representative director of a corporation, on behalf of the company, executes a joint and several guarantee contract with a third party who is an individual creditor, as stated in Article 398 of the Commercial Act, and did not go through a resolution of the board of directors because it constitutes an act of self-trade of directors under Article 398 of the Commercial Act, such resolution by the board of directors is merely an internal decision-making of the company, and unless the other party to the transaction knew or was negligent in gross negligence, the transaction is effective (see Supreme Court Decisions 84Da1591, Dec. 11, 1984; 94Da42754, Jan. 26, 196; 94Da4, etc.). In this case, the circumstances where the other party to the transaction knew or could have known that the resolution by the board of directors did not have been adopted, and thus, it constitutes matters to be asserted and proved by the company, barring special circumstances, it shall be interpreted that the representative of the company trusted that the internal procedure necessary for the transaction was completed (see Supreme Court Decision 2009Da25, Dec. 25, 25, 19, 1990.

According to the reasoning of the judgment below, the court below rejected the plaintiff company's assertion that the act of joint and several liability in this case constitutes an act of self-transaction by the representative director of the plaintiff company, and as long as the defendant knew or could have known it, it should be invalidated. The plaintiff company's resolution was not made at the time of the act of joint and several liability in this case, but the defendant's demand for joint and several liability of the plaintiff company was not made or could not be seen as being known solely because the defendant requested the user company to issue the contract of this case. The court below's above fact-finding and decision in light of the above legal principles and records are justified in its conclusion, and there were no errors in the misapprehension of legal principles as to the act of self-transaction by the director or the misconception of facts as to the violation of the rules of evidence as

3. On the fifth ground for appeal

The court below acknowledged facts as to the plaintiff company's assertion that the defendant's employee in charge of the tax payment guarantee insurance of this case actively aided or aided the above user in the act of occupational breach of trust by taking advantage of the plaintiff company's joint guarantee act, etc., and therefore the defendant is liable for damages as the user, and rejected the above assertion on the ground that the plaintiff company's assertion is not recognized as tort liability due to the defendant's public invitation or aiding and abetting. In light of the records, the court below's findings of facts and determination are justified and there is no error of law such as misunderstanding of legal principles as to illegal acts or misunderstanding of facts due to violation of

4. Conclusion

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 Park Jae- Jae (Presiding Justice)