Article 395 of the Commercial Code shall apply if the representative director is not qualified as director.

Article 395 of the Commercial Act requires that a Apparent representative director shall be qualified as a director. However, the above provision is interpreted to apply mutatis mutandis in cases where the company knowingly uses the name of Apparent representative director of the company or uses the name of Apparent representative director without a director's qualification even if it is known to or without any measure taken by the company.

Article 395 of the Commercial Act

Supreme Court Decision 77Da2436 Delivered on February 13, 1979

Attorney Song-sung, et al., Counsel for the defendant-appellant

Seoul High Court Decision 200Na1488 delivered on May 1, 20

Daegu High Court Decision 82Na1069 delivered on March 20, 1984

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The defendant's attorney's grounds of appeal are examined.

With respect to No. 1:

According to the reasoning of the judgment below, the court below held that the above defendant 1 was 0,000 shares shares issued by 0,000 shares, which were 10,000 shares of 10,000 shares, and that the defendant 2 was 30,00 shares of 10,000 shares and was 10,000 shares of 10,000 shares for the above 80,000 shares and was 15,000 shares and 10,000 shares for the above 0,000 shares were 10,000 shares and 80,000 shares were 10,000 shares and 9,000 shares were 10,000 shares and 9,000 won were 0,000 won were 0,000 won were 10,000 won were 10,000 won were 10,000 won were 10,000 won were 8,00 won.

However, Article 395 of the Commercial Act provides for the company's liability with respect to the act of a director who uses a name that may be mistaken for the existence of a company's representative authority, and therefore the representative director shall be qualified as a director. However, it is reasonable to interpret the above provision to apply mutatis mutandis to the case where the company uses the name of the representative director of the company or uses the name of the representative director without a director's qualification even though it is aware of the fact that the company uses the name of the representative director without a director's qualification or uses the name of the representative director without a director's qualification. Accordingly, according to the above facts established by the court below, the above provision constitutes a case where the above non-party 8 uses the name of the representative director without a director's qualification and is in an acceptable state without using any measures, so the defendant shall be liable for the plaintiff in accordance with Article 395 of the Commercial Act with respect to the so-called case of this case made by the non-party 8.

The judgment of the court below to the same purport is just and it cannot be said that there is an error like the theory of lawsuit, and the precedents of the acceptance of the theory of lawsuit are inappropriate in this case different cases. We are without merit.

With respect to the second ground:

Since the transfer of important business assets, which are the basis of the existence of a corporation, results in the discontinuance or suspension of business, it is reasonable to deem that the provisions of Article 374 subparagraph 1 of the Commercial Act are not different from that of the transfer of all or part of business. In such a case, the defendant company provided the real estate in this case to the Japanese bank as collateral, but the Japanese bank acquired it at the auction price, but the defendant company again purchased the real estate in this case from the Japanese bank, but it did not pay the remaining purchase price, and it was actually suspended business at the time of offering the real estate in this case as collateral, and the defendant company received the transfer of ownership as collateral, and the building was leased to another person. Even if the defendant company had the right under the purchase contract, it cannot be concluded that the right under the purchase contract was not the property used for the business of the defendant company, and it cannot be concluded that the transfer of the right cannot be concluded to be a disposition of the whole or part of the acquisition contract itself, and it cannot be concluded that the transfer of the right cannot be concluded otherwise.

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

Justices Kim Jong-sik (Presiding Justice)