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(영문) 서울고법 1973. 8. 16. 선고 73나560 제4민사부판결 : 상고
[근저당권설정등기말소청구사건][고집1973민(2), 90]
Main Issues

§ 395 of the Commercial Act, requirements for the liability of expression representative

Summary of Judgment

Article 395 of the Commercial Code provides that the person who committed an act as if he were entitled to represent the company shall be held as a legitimate director even if he did not have the right to represent the company.

[Reference Provisions]

Article 395 of the Commercial Act

Plaintiff 1, Appellant

Plaintiff, Ltd.

Defendant, Appellant

Jeju Bank, Inc.

Judgment of the lower court

Seoul Central District Court (72 Gohap3723) in the first instance trial

Text

The defendant's appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

Purport of claim

The Plaintiff’s legal representative, on May 4, 1972, performed the procedure of cancelling the registration of creation of superficies for the following reasons: “The Defendant’s legal representative, on April 20, 1972, on the real estate recorded in the attached list, shall execute the procedure of cancelling the registration of creation of superficies for the following reasons: (a) the registration of creation of mortgage for the following reasons: (b) the debtor Nonparty 1, the maximum debt amount of which was KRW 8,00,000,000 on April 20, 1972; and (c) the registration of creation of superficies for the following reasons: (a) the registration of creation of mortgage for the following reasons: (a) the registration of creation of mortgage for the following reasons: (b) the scope and the

It is called that litigation costs shall be borne by the defendant.

Purport of appeal

The defendant's attorney revoked the original judgment and dismissed the plaintiff's claim. The court costs are assessed against all of the plaintiff in the first and second instances.

Reasons

According to each entry of Gap evidence Nos. 1 through 12 (each copy of register) without dispute over the establishment, the land of this case shall be presumed to be owned by the plaintiff company, unless there are special circumstances, since it is possible to recognize the fact that the ownership transfer registration has been made in the name of the plaintiff company with respect to the real estate recorded in the attached list (hereinafter referred to as the "land of this case"), and the land of this case shall be presumed to be owned by the plaintiff company unless there are special circumstances.

Meanwhile, without dispute over the establishment of Gap evidence Nos. 1 through 7 of the evidence Nos. 2 and 3 of the same evidence No. 1 (a receipt for change of corporation, a resignation letter, a copy of temporary general meeting of shareholders, a power of attorney, a certificate of company register) and each statement of statement as to the non-party Nos. 2, 3, 4, 5, 6 and 7 among the records verified by the court below's records, the whole purport of the pleading is expressed. When the non-party No. 2, who was the former representative director of the plaintiff company, was bound by the violation of the Illegal Check Control Act on March 22, 1972, the non-party No. 8 was living together with the non-party No. 2's office, and the non-party No. 1 knew of the whereabouts of the director and the shareholders' seal, and the non-party No. 2 was offered as security by the non-party No. 1 to the non-party No. 5's new document of the plaintiff No. 2's resignation. 6.

However, the defendant's attorney, who was the representative director of the plaintiff company at the time, did not deal with the plaintiff's official seal and the director's seal impression, etc. in good faith while he faithfully kept them, so that the non-party 8 could steals and forge the related documents so that the plaintiff company can make a registration of change of the corporation. Thus, the plaintiff company cannot be exempted from its liability (Article 39 of the Commercial Act). Thus, the defendant's representative director's official seal and the director's seal impression, etc. are not the accident of this case, but the non-party 2 was detained as a violation of the Illegal Check Control Act on March 22, 1972, and the non-party 2 committed the accident of this case (the non-party 2 was released on bail on May 3, 1972). Ultimately, the accident of this case is not the non-party 2's negligence, but it can be easily seen that it constitutes a force majeure.

Next, Defendant 8 asserted that the appointment of Nonparty 8 as the representative director of the Plaintiff company is null and void, as alleged by Plaintiff 8, the legal relationship between the company and the third party cannot be affected until the lawsuit becomes final and conclusive, even if the appointment of Nonparty 8 as the representative director of the Plaintiff company is null and void. According to the facts acknowledged above, despite the absence of the general meeting of shareholders of the Plaintiff company, Nonparty 8 held the general meeting of shareholders and completed the registration of modification of the company by forging all relevant documents appointed as the representative director of the Plaintiff company through legitimate procedures. In this case, the absence of the general meeting of shareholders may be asserted in a specific case at any time without the need to file a lawsuit as it constitutes the absence of the general

Third, when considering that the defendant's attorney at the time of this case's act of offering collateral to the land of this case is called as an act of a representative without authority, the non-party 8 holds the official seal of the representative director, the seal of related directors, and the registration certificate of this case's land, etc., the non-party 8's act of offering collateral to the land of this case falls under Article 395 of the Commercial Act, and thus it cannot be exempted from liability against the defendant who is a bona fide third party. Thus, in the Commercial Act Article 395 of the Commercial Act, the defendant's attorney at the time of this case's act of using a name that can be recognized as a "president, vice president, managing director, managing director, or any other authority to represent the company, even if the director has no authority to represent the company, the company shall be held liable against the third party in good faith. However, according to the above sentence of Article 395 of the Commercial Act, the defendant's representative director at the time of this case's act is presumed to be a legitimate position of the company.

Therefore, since the above mortgage and superficies contract on the land of this case were made by an unentitled person, it shall be null and void. Therefore, the registration of mortgage and superficies creation shall also be exempted from the cancellation of the registration of invalidity which does not correspond to the real rights.

Therefore, the plaintiff's claim for cancellation of each of the above registrations will be justified, and the original judgment with the same purport is just, and the defendant's appeal against this is without merit, and the costs of appeal shall be dismissed. It is so decided as per Disposition with the burden of the losing party.

Judges Noh Byung (Presiding Judge)

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