[1] Whether a representative director of a mutual savings and finance company is liable under Article 399 of the Commercial Act in a case where a mutual savings and finance company fails to recover the loan because the representative director of a mutual savings and finance company loans in excess of the loan limit without securing sufficient security (affirmative)

[2] Whether a director's liability to a company under Article 399 of the Commercial Code can be exempted from the consent of the total shareholder under Article 400 of the Commercial Code by implied expression of intent (affirmative), and whether the consent of a de facto one shareholder can be seen as the consent of the total shareholder (affirmative)

[3] The starting point of the short-term statute of limitations for claim for damages caused by tort against a representative of a corporation

[4] The case holding that where a representative director of a mutual savings and finance company has failed to recover the loan by lending exceeding the loan limit to the same person without securing sufficient collateral, the person who takes over 100% stocks and management rights of the mutual savings and finance company from the representative director who is de facto one stockholder, and the new management became aware of the damage and the perpetrator of the mutual savings and finance company at the time when the existing non-performing loans of the mutual savings and finance company are confirmed

[5] Whether the interruption of extinctive prescription against another claim is effective where a creditor has multiple claims to achieve the same purpose (negative)

[6] The case holding that the interruption of extinctive prescription against the claim for damages caused by a general tort is not effective in a lawsuit claiming damages under Article 399 of the Commercial Act

[1] Where a representative director of a mutual savings and finance company has neglected to perform his/her duties, such as lending money in excess of the limit of loans to the same person at the time when he/she is in office and has caused damage to the mutual savings and finance company to prevent the collection of loans, the damages equivalent to the amount exceeding the limit of loans of the same person out of the unpaid loans shall be liable to the mutual savings and finance company pursuant to Article 39

[2] The liability of directors under Article 399 of the Commercial Code may be exempted from the consent of the total shareholder pursuant to Article 400 of the Commercial Code. In this case, the consent of the total shareholder can be made by implied declaration of intention, and there is no need to make explicit and active. In substance, even if the total shares belong to one of the shareholders, but some shares are trusted under another's name only due to the name of the shareholder, the consent of the actual one shareholder shall also be viewed as the consent of the total shareholder.

[3] In determining the "date when the representative of a corporation becomes aware of the damage or the identity of the perpetrator, which is the starting point of the short-term extinctive prescription for the claim for damages caused by a tort, when the representative of a corporation committed a tort against the corporation, the corporation and its representative are more beneficially profits, so it is difficult to expect that the claim for damages caused by the tort will be exercised, as well as the power of representation would be generally denied. Therefore, it is insufficient to say that the representative is aware of the damage or the identity of the tortfeasor, and the above short-term extinctive prescription will run only when the representative becomes aware of the fact that other executives,

[4] The case holding that where a representative director of a mutual savings and finance company of the same mutual savings and finance company has failed to recover the loan without securing sufficient collateral, the person who takes over 100% stocks and management rights of the mutual savings and finance company from the representative director who is de facto one stockholder, and new management shall be included in the scope of the person who is authorized to properly preserve the interests of the mutual savings and finance company and is entitled to claim damages, and that such person shall not have any damage and perpetrator at the time of confirming the existing non-performing loan amount of the mutual savings and finance company through a due diligence

[5] Where a creditor holds multiple claims to achieve the same purpose, the creditor can exercise his/her right at his/her option, but one of them cannot be deemed to exercise another claim itself. Thus, barring any special circumstance, the interruption of extinctive prescription for other claims shall not be effective.

[6] The case holding that the interruption of extinctive prescription against the claim for damages caused by a general tort is not effective in a lawsuit claiming damages under Article 399 of the Commercial Act

[1] Article 39(1) of the Commercial Act, Article 12 of the former Mutual Savings and Finance Company Act (amended by Act No. 6429 of March 28, 2001) (see Article 12 of the current Mutual Savings Banks Act) / [2] Articles 399(1) and 400 of the Commercial Act / [3] Article 766(1) of the Civil Act / [4] Article 766(1) of the Civil Act, Article 39(1) of the Commercial Act / [5] Article 168 of the Civil Act / [6] Articles 168, 170, and 750 of the Civil Act, Article 399 of the Commercial Act

[1] Supreme Court Decision 2001Da76854 decided Feb. 26, 2002 (Gong2002Sang, 810) / [2] Supreme Court Decision 95Da56316 decided Apr. 9, 1996 (Gong1996Sang, 1395) / [3] Supreme Court Decision 98Da34126 decided Nov. 10, 1998 (Gong1998Ha, 2845) / [5] Supreme Court Decision 92Da50942 decided Mar. 23, 1993 (Gong193Sang, 1274), Supreme Court Decision 93Da5922 decided Dec. 2, 1994 (Gong1995Sang, 4269 decided Dec. 16, 1993; Supreme Court Decision 2000Da38197 decided Nov. 36, 1997

Korea Deposit Insurance Corporation in bankruptcy of the Maritime Credit Credit Cooperatives, the bankrupt taking over the lawsuit of the Maritime Credit Cooperatives (Law Firm Mancheon, Attorney Yellow-ro, Counsel for the plaintiff-appellant)

Defendant (Attorney Shin Sung-sung, Counsel for defendant-appellant)

Seoul High Court Decision 2001Na23876 delivered on January 15, 2002

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. As to the defendant's liability under Article 399 of the Commercial Code due to the excess of the loan limit to the same person

According to the reasoning of the judgment below, the court below determined that the defendant was liable for damages to the non-party 2's total non-performing loan amounting to KRW 5,190,842,374 as of February 2, 199, and that the non-party 2 was liable for damages to the non-party 3's non-performing loan amounting to KRW 700,000,000,000,000,000 as of December 4, 1996, and the defendant was liable for damages to the non-party 205,000,000,000 won as of October 4, 1996. The court below determined that the non-party 2 was not liable for damages to the non-party 3's non-performing loan amounting to the non-party 3's total non-performing loan amounting to KRW 700,000,000,000,000.

In cases where the representative director of a mutual savings bank in a mutual savings and finance company has neglected his/her duties, such as lending money exceeding the limit of loans to the same person at the time when he/she is in office and caused damage to the mutual savings and finance company to prevent the collection of loans, the damage equivalent to the amount exceeding the limit of loans to the same person out of the unpaid loans shall be liable to compensate for the damages to the mutual savings and finance company pursuant to Article 399 of the Commercial Act (see Supreme Court Decision 2001Da76854, Feb. 26, 2002). Such a director's liability may be exempted from the consent of the total stockholder pursuant to Article 400 of the Commercial Act. In this case, the consent of the total stockholder can be exempted by implied expression of intention, and it is not necessarily required to be made explicitly and explicitly, and even if all shares belong to one stockholder, but only some shares are trusted in the name of another person due to the name of the stockholder, the consent of the de facto one stockholder shall be deemed to be

Therefore, it is clear that the defendant, as a de facto shareholder who acquired the total shares of the ○○ Depository until the time of the transfer of shares, suffered damage to the ○○ Depository due to loans, etc. in excess of the above limit by the actual owner of the property and then, in determining the transfer price of shares, an agreement with the defendant to vest in the economic burden on the liability of the defendant by deducting the amount of non-performing loans from the original agreed stock transfer value. It is no other reason to believe that the defendant had an implied intent not to hold the defendant liable for liability. Thus, the defendant's liability with the implied consent of the non-party 2 is legally exempted, regardless of whether the damage suffered by the ○○○ Depository was actually compensated, and there is no error of law such as incomplete deliberation, mistake of facts, misunderstanding of legal principles, etc., in the judgment of the court below, and it is not contrary to the above judgment of the court below as stated in the ground of appeal. Thus, it is not justified in the ground of appeal by citing the above decision.

2. As to the defendant's tort liability due to the excess of the loan limit to the same person

According to the reasoning of the judgment below, on December 20, 196, when the above share transfer agreement was concluded, the court below determined that the plaintiff's claim for damages against the defendant was extinguished by prescription, since it is apparent in the record that the plaintiff submitted the preparatory document of this case, which was selectively added the defendant's claim for damages on February 23, 2000 after three years passed since the plaintiff submitted the preparatory document of this case.

In determining the "date when the representative of a corporation becomes aware of the damage and the identity of the perpetrator, which is the starting point of the short-term extinctive prescription of a claim for damages caused by a tort, when the representative of a corporation committed a tort against the corporation, the corporation and its representative are more and more profits, so it is difficult to expect that the representative exercise the claim for damages caused by the tort and generally denied his/her power of representation. Therefore, the representative is insufficient only to recognize the damage and the perpetrator, and at least when other executives, employees, etc. who have the authority to properly preserve the profits of the corporation become aware of the fact that it is possible to exercise the claim for damages, the short-term extinctive prescription should proceed (Supreme Court Decision 98Da34126 delivered on Nov. 10, 1998), and the above 100% shares and the management right of the ○○ safe from the defendant are included in the scope of the person who has the authority to properly compensate the profits of the ○○ safe, and the amount of the existing non-performing loan at the time of the ○○ safe.

In addition, where a creditor has multiple claims in order to achieve the same purpose, he/she may exercise his/her right at his/her option, but only one of them cannot be deemed to exercise another claim itself. Thus, barring any special circumstance, the interruption of extinctive prescription for other claims shall not be effective (see Supreme Court Decision 2001Da6145, Mar. 23, 2001). Thus, the plaintiff filed a lawsuit against the defendant for a claim for damages under Article 399 of the Commercial Act, and thus, the plaintiff's extinctive prescription for a claim for damages due to general illegal acts against the defendant cannot be interrupted.

Therefore, the judgment of the court below is just in accordance with the above legal principles, and it is not erroneous in the misapprehension of legal principles as to the starting point of the short-term extinctive prescription of claim for damages due to

3. As to the defendant's liability due to unsound loans

According to the reasoning of the judgment below, the court below rejected the Plaintiff’s claim on this part, on the ground that the Defendant’s establishment of a pledge on a term deposit of KRW 3.6 billion to the ○○○ Depository in order to secure the collection of claims classified as unsound bonds upon transferring the shares to Nonparty 2, where the principal and interest of a loan cannot be recovered in the future, it cannot be deemed that the Defendant promised to compensate to the ○○ Depository, and

According to the reasoning of the judgment below and the records, since the acquisition of shares between the defendant and the non-party 2 by transfer of shares of this case was conducted by inspecting the assets of the ○○○ safe and confirmed the price of the shares as at December 20, 1996, the remaining unsound bonds amount of the ○○○○ safe at the time of such conclusion was proved to be KRW 3,637,071,000, and the defendant, in order to secure the collection of the above unsound bonds, deposited a term deposit equivalent to the same amount with the ○○○○ safe and made a pledge on the assignee's side to secure the collection of the above unsound bonds, they shall be applied to the above bad bonds, and if the above bad bonds are proved to be non-performing bonds, the defendant agreed to reimburse the above amount, and on the other hand, the ○○ safe shall not be deemed to have violated the rules of evidence-related facts on the remaining amount of the ○○○ safe's obligation to pay the 3000,000,000 won.

4. 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 on the bench.

Justices Lee Jae-in (Presiding Justice)