(영문) 부산고등법원 2017. 4. 12. 선고 2016나264 판결

The defendant shall pay to the plaintiff 132,403,833 won with an annual interest rate of 5% from April 30, 2011 to April 12, 2017, and 15% per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. Of the total litigation costs, 70% is borne by the Plaintiff, and the remainder is borne by the Defendant, respectively.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

Purport of claim and appeal

The judgment of the first instance shall be revoked.

The defendant shall pay to the plaintiff 633,403,33 won and 137,533 won among them at each rate of 5% per annum from April 30, 2011 to the service date of a copy of each complaint of this case from December 29, 2012 to the service date of a copy of each complaint of this case, and 20% per annum from the next day to the day of complete payment.

Reasons

1. Basic facts

A. Status of the parties

1) The Plaintiff was established on August 16, 200 for the purpose of wholesale and consignment sales business of agricultural products, and the total number of shares issued is 300,000 shares. The Plaintiff’s officers were all appointed from among shareholders.

2) The Defendant holds 33,00 shares issued by the Plaintiff (11%). On March 29, 2002, the Defendant resigned from the Plaintiff’s director on March 29, 2002, and again retired from office on the same day as the director on March 31, 2016. During that period, the Defendant served as the representative director from March 31, 2008 to March 31, 2013, and re-employed again on May 19, 2016.

B. Performance bonus and special bonus received by the defendant while the defendant's representative director is in office

During the business year (2008 to 2012) in which the Defendant was in service as representative director, the Defendant received performance bonuses and special bonuses from the Plaintiff as shown below (hereinafter “instant bonus”).

The total amount of performance bonus for the business year included in the main sentence shall be the 16,000,000 August 28, 2008 on December 22, 2008, 2008; 16,000,000,000 on December 16, 2008; 200,000 on December 17, 2009; 16,00,000,000 on December 29, 208, 200,000,000,000,000,000,000 on December 29, 200, 208; 16,000,000,000 on December 15, 200, 200, 2000; 16, 10,0000,000 on December 15, 200, 2010

C. The defendant's interim settlement of retirement pay

1) After the Defendant was appointed as the Plaintiff’s director, the Defendant applied for interim settlement of retirement allowances at the end of each year from 2005 to 2007, and received KRW 31,533,333 as the interim settlement of retirement allowances from the Plaintiff.

2) On April 28, 2011, the Defendant filed an interim settlement of retirement allowances with the Plaintiff’s representative director and received payment of KRW 132,403,83 as the interim settlement of retirement allowances on April 28, 2011 (i.e., average monthly remuneration of KRW 7,925,00 x 8 years and 10 years of continuous service x 8 months of continuous service x 2 x 31,533 - retirement income tax of KRW 4,63,190 - retirement income tax of KRW 466,310).

D. Articles of incorporation of the Plaintiff

1) The Plaintiff’s articles of incorporation was amended four times since its enactment on August 16, 200, and the part relating to the instant case is as follows.

2) The portion related to remuneration and retirement allowances for executives

Article 30 of the plaintiff's articles of incorporation on this part was amended twice as follows.

A) At the time of establishment

○ The remuneration for directors and auditors under section 30 (Retirement Allowance) shall be determined by a general meeting of shareholders and the amount of remuneration for each of the officers of the company shall be determined by a resolution of the board of directors. The same shall also apply

B) The amendment of March 31, 2010, during the term of office of the defendant representative director, was made.

Article 30 (Remuneration for Director and Auditor) The amount of remuneration for each officer shall be determined by a resolution of the board of directors at a general meeting of shareholders and the amount of remuneration for each officer shall be determined by the resolution of the board of directors. The same shall apply to retirement allowances for retired officers, and the amount paid shall be the average monthly amount of the annual total remuneration of the full-time

C) Amendment of June 20, 2014 (the same amendment was amended as at the time of enactment) after the Defendant’s retirement of the representative director.

3) Articles of incorporation relating to the disposal of profits

○ The Company shall dispose of its profits for each business year as follows.

1. Earned surplus reserve - Not less than 1/10 of cash dividends;

2. Separate Reserve - several types

3. Dividends - Some dividends to stockholders;

4. Retirement benefit fund and bonus for executives and employees - several persons;

5. The difference between the base and the base and the base and the base and amount;

[Ground of recognition] A without dispute, Gap evidence Nos. 1 through 5 (including branch numbers in case of additional number), Gap evidence No. 15, Eul evidence No. 3-1, 5, 9, Eul evidence No. 4, the purport of the whole pleadings

2. Summary of the plaintiff's assertion

A. The instant bonus constitutes a disposition of profits stipulated in Article 37 of the Plaintiff’s articles of incorporation, not remuneration for officers, and thus, a resolution of the general meeting of shareholders is required pursuant to Article 462 of the Commercial Act on dividend of profits. However, the Defendant received the instant bonus without going through such a resolution of the general meeting of shareholders. Even if the instant bonus is assumed to be remuneration for officers, the instant bonus was illegally received by the Defendant by deviating from the delegation system of the general meeting of shareholders or violating the resolution of the board of directors during the Plaintiff’s term of office as the representative director, and thus, the Defendant should return the instant bonus KRW 18,80,00

B. Since retirement allowances for officers occur only upon retirement, an interim settlement of retirement allowances for officers is not allowed unless the articles of incorporation or a resolution of the general meeting of shareholders is adopted. The defendant is currently holding office as an officer of the plaintiff, and thus, he is paid KRW 137,533,333 as interim settlement of retirement allowances, and thus, he shall return

C. The Defendant, while holding office as the representative director, incurred losses to the Plaintiff by exceeding KRW 804,00,000 for sales management expenses in 2010, in violation of the accounting procedure regulations and the organization and business division regulations, and thus, the Defendant is obligated to return 300,000,000, which is a part of the damages, as compensation for damages due to nonperformance. As such, the Defendant’s payment of annual fees, etc. to the organizations whose members were the Plaintiff’s members, caused damages to KRW 7,0

3. Judgment on the defendant's main defense

A. Summary of the defendant's assertion

In the Busan High Court case No. 2011Na4735, the conciliation was concluded with Nonparty 2, Nonparty 3, and Nonparty 4 as the conciliation intervenor in the Busan High Court case No. 2011 or 4735. The conciliation clause includes the content that “the Defendant, ○○○○○○○○ Association, Nonparty 1, Nonparty 2, Nonparty 3, and Nonparty 4 shall withdraw the case and all related litigation at Busan High Court No. 2011Na4735 and shall not raise any civil or criminal objection.”

The instant lawsuit is not a party to the instant case, but actually instituted by Nonparty 2, and thus, the instant lawsuit is unlawful as it violates the non-assignment clause or violates the good faith principle.

B. Determination

In full view of the purport of the entire arguments in the statement No. 5, it is recognized that the conciliation was concluded that, in the case No. 2011 or 4735 of the Busan High Court between ○○○○○○○○○○ and the Defendant, and Nonparty 1, Nonparty 2, Nonparty 2, Nonparty 3, and Nonparty 4, participating in the conciliation division, “the Defendant, ○○○○○○○○○○○, Nonparty 1, Nonparty 2, Nonparty 3, and Nonparty 4 shall withdraw the case and all related cases of the Busan High Court No. 2011 or 4735 and shall not raise any civil or criminal objection.”

However, even if Nonparty 2 filed the instant lawsuit on behalf of the Plaintiff on behalf of the Plaintiff as an auditor, the parties to the instant lawsuit are not Nonparty 2 and the Plaintiff. Therefore, the instant lawsuit, which differs between Nonparty 2 and the Defendant, cannot be deemed to go against the contents of the instant conciliation or to be contrary to the good faith principle, on the ground that the said conciliation was concluded between Nonparty 2 and the Defendant. This part

4. Determination

A. Determination as to the claim for return of the bonus of this case

1) Claim of deficiency in the resolution procedure of the general meeting of shareholders under Article 462(2) of the Commercial Act

A) Summary of the Plaintiff’s assertion

A bonus is a non-regular salary paid in order to raise the desire to work and enhance the sense of achievement in a case where the company's ordinary performance is good. Of the amount paid to directors as bonus, it falls under remuneration in the case of a regular amount of money paid regardless of the company's profit. However, unlike this, in a case where a company's profit occurs, such as performance bonus or special bonus, it constitutes a bonus as a disposition disposition, and thus, it constitutes a bonus as a disposition disposition, and thus, it must undergo a resolution of the general meeting of shareholders under Article 462 (2) of the Commercial Act. Nevertheless, this case's bonus received by the defendant without the resolution of the general meeting of shareholders is returned to the defendant.

B) the facts of recognition

According to the above evidence, the following facts are acknowledged.

(1) Since 2006, the Plaintiff paid a fixed-amount bonus, performance bonus, and special bonus to the executives within the limit of the officer’s remuneration determined at the general meeting of shareholders, before the Defendant serves as the representative director.

(2) The reasons why the bonus was paid in 2008

(A) On March 25, 2008, the Plaintiff’s general meeting of shareholders adopted a resolution of KRW 800 million on the total amount of remuneration for executive officers in the business year of 2008.

(B) Accordingly, on April 23, 2008, the board of directors decided to allocate the total amount of KRW 97,600,000 as performance bonus to KRW 161,40,00 as special bonus.

(C) On August 28, 2008, the board of directors passed a resolution to pay an aggregate of KRW 48,800,000 based on the basic salary to executive officers for “promotion of activities of collecting and selling high-water agricultural products.” Accordingly, the Defendant received KRW 8,00,000 as special bonus on August 28, 2008. The board of directors passed a resolution to pay KRW 104,80,000 in total with KRW 400 of the basic salary as special bonus on December 22, 2008. Accordingly, the Defendant received KRW 16,00,000,000 in accordance with the resolution of the board of directors on December 22, 2008. The board of directors received KRW 407,600,000 in total as the basic salary on December 30, 200, and the Defendant received KRW 600,000 in accordance with the resolution.

(3) The reasons why the bonus was paid in 2009

(A) On March 17, 2009, the Plaintiff’s general meeting of shareholders resolved on the total limit of executive remuneration for the year 2009 as KRW 800 million as the previous year.

(B) Accordingly, on April 1, 2009, the board of directors decided to allocate KRW 210,400,000 as retirement consolation money to KRW 30,00,00 as performance bonus, performance bonus to KRW 90,20,00 as special bonus, and KRW 210,40,00 as special bonus.

(C) After December 17, 2009, the board of directors decided to pay the total of KRW 127,800,000 of the basic salary to the executives as special bonus. Accordingly, the Defendant received KRW 24,00,000. On December 29, 2009, the board of directors decided to pay the total of KRW 90,200,000 of the basic salary as performance bonus to the executives. Accordingly, the Defendant received KRW 16,00,000,000.

(4) The reasons why the bonus was paid in 2010

(A) On March 31, 2010, the general meeting of shareholders of the Plaintiff Company resolved on the total amount of remuneration for executive officers in the business year 2010 to KRW 100 million increased compared to that of the previous year.

(B) Accordingly, on April 22, 2010, the board of directors decided to allocate KRW 268,079,000 as retirement consolation benefits, performance bonus of KRW 75,60,00 (basic salary) as performance bonus, and KRW 127,921,00 as reservation amount, from the total limit of executive compensation of KRW 900,00.

(C) On December 15, 2010, the board of directors decided to pay additional bonus of KRW 94,500,000, in addition to the performance bonus of KRW 100,000, in addition to the performance bonus of KRW 500,000. Accordingly, the Defendant received performance bonus of KRW 21,50,000 and special bonus of KRW 21,50,000.

(5) The reasons why the bonus was paid in 201

(A) On March 16, 2011, the general meeting of shareholders of the Plaintiff Company resolved on the total amount of remuneration for executive officers in the business year of 2011 as KRW 900 million as of March 16, 201.

(B) Accordingly, on April 14, 2011, the board of directors decided to assign KRW 275,777,000 as retirement consolation money, performance bonus of KRW 93,60,00 as retirement consolation money, and KRW 95,023,00 as reserve amount.

(C) On December 26, 2011, the board of directors decided to pay the performance bonus of KRW 117,000,000 in total and KRW 46,80,000 in total as special bonus by paying the performance bonus of KRW 500 in addition to the existing performance bonus. Accordingly, the Defendant received KRW 23,000,000 as performance bonus and KRW 9,20,000 as special bonus.

(6) The reasons why the bonus was paid in 2012

(A) On March 29, 2012, the general meeting of shareholders of the Plaintiff Company resolved on March 29, 2012 that the total amount of remuneration for executive officers in the business year of 2012 was increased by KRW 90 million compared to the previous year and KRW 990 million.

(B) Accordingly, on April 19, 2012, the board of directors decided to determine the bonus of 800% of the basic salary, 89 million won with retirement compensation, and 100 million won with the reserve fund, and the bonus shall be a fixed bonus, performance bonus, and special bonus with 400% of the bonus and the performance bonus shall be paid as performance bonus and special bonus when it exceeds the trading goals at the end of each year.

(C) On December 28, 2012, the board of directors made a resolution to pay a total of 500% of the basic salary by adding 100% of the basic salary to the performance bonus as well as 200% of the basic salary to the special bonus. Accordingly, the Defendant received the performance bonus of KRW 24,00,000, special bonus of KRW 9,600,000.

C) Determination

(1) Article 37 of the Plaintiff’s articles of incorporation provides for “ bonuses” as the disposal item of the business year’s profit, so a resolution of the general meeting of shareholders under Article 462(2) of the Commercial Act is required in accordance with Article 37 of the Articles of incorporation to pay bonuses to executives and employees in the manner of disposal of profit. However, in cases of the proviso of Article 462(2) of the Commercial Act, bonuses may be paid

(1)

Meanwhile, the director’s remuneration under Article 388 of the Commercial Act is paid as consideration for the director’s performance of duty, and thus, if a bonus is paid as consideration for the director’s performance of duty or payment for special public interest even if it is used as bonus, it constitutes remuneration for the director, which falls under the nature of such bonus, and thus constitutes remuneration for the director under Article 388 of the Commercial Act (see Supreme Court Decision 77Da1788, Jan. 10, 1978, etc.).

As can be seen, there are bonuses paid as profit disposal pursuant to Article 462 of the Commercial Act and bonuses paid as remuneration pursuant to Article 388 of the Commercial Act. Accordingly, the Corporate Tax Act deals with the bonus paid as profit disposal and the bonus paid as remuneration.

In other words, Article 19(1) and Article 20 subparag. 1 of the Corporate Tax Act and Article 43(1) of the Enforcement Decree of the Corporate Tax Act provide that “in principle, bonuses paid by the disposal of profits shall not be included in deductible expenses.” Article 26 of the Corporate Tax Act provides that “The amount deemed excessive or unjust as prescribed by the Presidential Decree among the following losses shall not be included in deductible expenses in calculating the income amount of a domestic corporation for each business year.” Article 43(2) of the Enforcement Decree of the Corporate Tax Act provides that “the amount of labor cost” under subparagraph 1 provides that “if the amount exceeds the amount paid by the standards for the payment of wages determined by the articles of incorporation, the general meeting of shareholders, the general meeting of employees or the resolution of the board of directors among bonuses paid to an executive officer, such excess amount shall not be included in deductible expenses.” Article 26 of the Corporate Tax Act provides that “In principle

Inasmuch as bonus paid to an executive officer falls under any of his/her major issues, it should be classified based on the details of payment, financial resources, payment procedures, etc., and it cannot be distinguished only on whether it is regular and irregular. Therefore, the Plaintiff’s assertion that bonus paid to an executive officer constitutes the disposal of profits, and thus, the bonus paid to an executive officer is subject to a resolution of the general meeting of shareholders under Article 462(2) of the Commercial Act is rejected.

(2) Furthermore, we examine whether the substance of the instant bonus constitutes a bonus as a disposition of profits, and whether it constitutes remuneration.

In full view of the following circumstances revealed by the facts as seen earlier, the bonus in this case is considered as remuneration paid to the officers in consideration of the performance of their duties, and the evidence submitted by the Plaintiff alone cannot be deemed as a bonus as a disposition of profits.

① Even before the Defendant serves as the representative director, the Plaintiff has paid the special bonus to the executives each year within the total amount of remuneration determined at the general meeting of shareholders. Data that the Plaintiff had received the method of disposing of the profits under Article 37 of the Plaintiff’s articles of incorporation while paying such special bonus is not submitted.

② The Plaintiff’s general meeting of shareholders in 2008 to 2012 only decided the total amount of executive remuneration and did not decide on the title thereof at the general meeting of shareholders in each of the pertinent business years. In 2012, a shareholder proposal was made to divide the maximum amount of executive remuneration into “compensation” and “retirement consolation money,” but was rejected at the general meeting, and only the total amount was resolved.

③ Article 30 of the Plaintiff’s articles of incorporation provides that the amount of remuneration for executives shall be determined by the general meeting of shareholders and the amount of remuneration for each executive shall be determined by the resolution of the board of directors, and thus, the amount of specific remuneration shall be delegated to the board of directors. If the Plaintiff’s board of directors annually determines the limit of remuneration for executives, the Plaintiff’s board of directors has reserved a certain amount as the name of performance bonus and special bonus, and has paid performance bonus or special bonus within the limit of remuneration for which payment was reserved

④ As can be seen, the bonus of this case was paid on the basis of the remuneration of executive officers determined at the general meeting of shareholders, regardless of the specific amount of profit for the pertinent business year. In light of the circumstances of payment, payment procedure, etc. of the bonus of this case, it is reasonable to deem that the bonus of this case was paid in return for

⑤ The Plaintiff asserts that Article 43(2) of the Enforcement Decree of the Corporate Tax Act provides that “if a corporation has paid bonuses to executive officers in excess of the amount paid according to the standards for payment of benefits determined by the articles of incorporation, the general meeting of shareholders, the general meeting of members, or the resolution of the board of directors, such excess amount shall not be included in the calculation of losses.” Thus, the Plaintiff asserts to the effect that all bonuses exceeding the standards for payment of benefits should be deemed as profits disposal. However, the foregoing provision merely purports that even a bonus paid as personnel expenses should not be recognized as losses if it is unfairly excessive. Therefore, it cannot be deemed that the foregoing provision provides that bonuses paid unlawfully shall be based on

2) Claim of deviation from the delegation scope of the limit of remuneration determined by the general meeting of shareholders

A) Summary of the Plaintiff’s assertion

Since the limit of remuneration for the officers stipulated at the general meeting of shareholders includes the retirement allowance for the officers, the board of directors shall set individual wages for each officer within the scope determined at the general meeting of shareholders and pay or accumulate the remainder as retirement allowance, and the performance bonus and special bonus specifically requiring the requirements as a disposition of profit pursuant to Article 37 of the Plaintiff’s articles of incorporation are different from the limit of remuneration for the officers determined at the general meeting of shareholders. However, the Plaintiff’s payment of performance bonus and special bonus merely by the resolution of the board of directors is ultimately converted the financial resources to be used as retirement allowance into the amount of

B) Determination

(1) As seen earlier, it is difficult to view the bonus in this case as a bonus from the disposition of profits under Article 37 of the Plaintiff’s Articles of Incorporation. Accordingly, this part of the Plaintiff’s assertion on a different premise cannot be accepted.

(2) In addition, comprehensively taking account of the overall purport of evidence as stated above, including evidence No. 4-2, evidence No. 5-2, evidence No. 5-2, evidence No. 5-3, and evidence No. 15, the Plaintiff’s regular general meeting of shareholders presented a review to include retirement consolation benefits and special bonus that cannot be predicted in the limit of executive officers’ remuneration at the time of the resolution of the limit of executive officers’ remuneration at the Plaintiff’s general meeting of shareholders, but then the resolution of the limit of executive officers’ remuneration as the original plan with the consent of all the shareholders present at the meeting of shareholders. The Plaintiff’s general meeting of shareholders in 2012 adopted a resolution to determine the limit of executive officers’ remuneration, but the shareholders were dismissed at the general meeting of shareholders, and only the total limit of executive officers’ remuneration was decided. Accordingly, it is difficult to accept the fact that the shareholders, at the time of the resolution of the general meeting of shareholders, determined the limit of executive officers’ remuneration and used it as retirement allowance as well as the remaining amount of executive officers’ remuneration.

3) Determination on the remainder of the Plaintiff’s assertion

In this part, the reasons for this court's statement are as follows, in addition to adding the following judgments, since it is identical to the part of the 7th court's 10 to 9th court's 7th court's 7th court decision, it is acceptable to accept it as it is

○ Additional Judgment

Since the remuneration of directors is the remuneration for performing their duties, they must maintain a reasonable proportional relationship with their duties and should be reasonable in light of the company’s management and financial status, and the propriety of remuneration should be determined specifically and individually by taking into account the financial situation faced by the company, the progress of the business operated by the company, the size of the company, and the details of the director’s duties. In particular, as in the instant case, if the board of directors can determine their remuneration by itself pursuant to the provisions of the articles of incorporation, if the board of directors decided the excessive remuneration lacking a reasonable relationship with the company’s duty of loyalty, it constitutes a violation of the company’

However, even if examining all evidence submitted by the Plaintiff, it is difficult to conclude that the bonus of this case constitutes remuneration lacking reasonable proportionality to the extent that it violates the duty of loyalty of the director.

B. Determination as to the claim for return of interim settlement of retirement allowances

1) Facts of recognition

A) On March 31, 2010, the Plaintiff’s general meeting of shareholders revised Article 30 of the Articles of Incorporation on the remuneration and retirement pay of officers to the amount calculated by multiplying the average monthly amount of the annual total remuneration of the full-time officer by twice the number of years of continuous service.

B) On April 22, 2010, the board of directors of the Plaintiff enacted the following provisions on retirement benefits for executive officers.

Article 4 (Retirement Allowance) of the Regulations on Retirement Allowance for Officers included in the main text of this Act shall be the amount calculated based on the following calculation standards: ○ retirement allowance = The average monthly amount of annual total remunerations of full-time officers at the time of retirement 】 the number of years of continuous service 】 the number of years of continuous service 】 the number of years of continuous service of executives refers to the period from the date when the general meeting of shareholders receives the initial appointment to the date of retirement. The additional rate for long-term continuous service of executives under Article 7 (Additional Additional Rates) shall be double times the number of years of continuous service under the preceding Article. 8 (Interim Retirement Allowance and Retirement Pension) (1) A company may conduct interim settlement of retirement allowances at the request of an executive officer. 2) A company may conduct a retirement pension, such as retirement allowance system suitable for the characteristics of the executive officer, fixed leisure or fixed amount of retirement allowance, etc.

C) Upon the enactment of such rules on retirement benefits for officers, the Defendant filed an interim settlement of the retirement benefits around April 201, and received KRW 132,403,833 as the interim settlement of the retirement benefits from the Plaintiff, as seen earlier on April 28, 2011.

[Grounds for recognition] Evidence, Gap's evidence No. 7, the purport of the whole pleadings

2) Determination

A) A director’s retirement allowance may be determined by the articles of incorporation, including remuneration under Article 388 of the Commercial Act, or by a resolution of the general meeting of shareholders. Such a claim for retirement allowance arises only when a director retires and a resolution for the payment of retirement allowances is passed at the general meeting of shareholders (see Supreme Court Decision 2003Da16092, May 25, 2006, etc.). In addition, Article 388 of the Commercial Act is a mandatory provision under Article 388 of the Commercial Act. Thus, in cases where a director’s articles of incorporation provides for remuneration or retirement allowances by a resolution of the general meeting of shareholders, if there is no evidence to prove that the resolution of the general meeting of shareholders on the amount, payment time, payment method, etc. of such amount is made, the director may not claim remuneration or retirement allowances (see Supreme Court Decisions 79Da1599, Nov. 27, 197; 92Da2828, Dec. 22, 199

B) In full view of the purport of the provision of Article 388 of the Commercial Act, the nature of the director’s right to claim retirement allowances and the time of occurrence thereof, it is reasonable to deem that a director’s claim for interim settlement of accounts for retirement allowances is not allowed unless otherwise stipulated in the articles of incorporation

① A director’s claim for retirement allowance occurs only when a director retires. Nevertheless, if a director receives retirement allowance in advance by the interim settlement, it means that the company’s assets are leaked, and accordingly, it may infringe on the company, its shareholders, and its creditors’ interests.

② Since a director’s right to claim retirement benefits occurs only when the company retires, even if the articles of incorporation stipulates that the specific amount of retirement benefits for the retired director shall be calculated based on the amount of wages, payment rate, and continuous service year at the time of retirement within a certain scope, and that the payment rate is reduced after amending the articles of incorporation, when calculating retirement benefits for the retired director, the payment rate under the provisions of the articles of incorporation amended lawfully at the time of retirement does not apply to the entire continuous service period by dividing the period before and after the amendment of the articles of incorporation regarding retirement benefits (see, e.g., Supreme Court Decision 2003Da16092, supra).

③ As can be seen, the general meeting of shareholders of a company may control the retirement allowance of a director through the amendment of the articles of incorporation. If a director’s interim settlement of the retirement allowance is recognized, the director may escape from such control by receiving the interim settlement of the retirement allowance at the most favorable time. In other words, even if the articles of incorporation changes after receiving the interim settlement of the retirement allowance and the payment rate of the retirement allowance is changed, if a director does not retire, the payment rate of the retirement allowance to be applied at the time of retirement cannot be determined if the director does not retire. Therefore, the portion equivalent to the current payment rate of the retirement allowance cannot be determined to be unreasonable, and ultimately, the director’s interim settlement cannot be determined to prevent the holding of the interim settlement amount equivalent to the above difference. Of course, it is true that the director can receive the interim settlement and settle it after receiving the payment rate of the retirement allowance to be applied at the time of retirement

C) Therefore, in the instant case, there is no evidence to deem that the Plaintiff’s articles of incorporation or the shareholders’ general meeting either either established or resolved on the interim settlement of retirement allowances by directors, and thus, the Defendant is obligated to return KRW 132,403,833 received from the Plaintiff as unjust enrichment.

D) On this point, the Defendant asserts to the effect that the rules on retirement allowances for officers prescribed by the board of directors may be deemed to have been delegated to the articles of incorporation, and thus, the Defendant’s receipt of interim settlement of retirement allowances is justifiable. However, as seen earlier, the Plaintiff’s articles of incorporation does not have any provision regarding interim settlement of retirement allowances for directors, and there is no evidence to deem that the Plaintiff’s resolution to allow interim settlement of retirement allowances at the Plaintiff’s general meeting of shareholders was made. Therefore, it is difficult to recognize the validity of the said rules on interim settlement of retirement allowances

E) In other words, the Defendant asserts that the Plaintiff’s shareholders’ meeting should be deemed to have approved or ratified the Defendant’s interim settlement of retirement benefits, since the interim settlement amount paid to the Defendant at the regular shareholders’ meeting in 2011 was approved as retirement benefits, such as the balance sheet, income statement, and appropriation of appropriation of appropriation of appropriation of earnings.

However, according to the evidence submitted by the Defendant, including the evidence Nos. 4-1 to 14, the balance sheet, income statement, and appropriation of retained earnings submitted to the Plaintiff’s general meeting of shareholders in 2011 does not contain any specific statement that the interim payment of retirement benefits was made to the Defendant, but it is acknowledged that only the total amount of retirement benefits for the pertinent year was stated. Therefore, it is difficult to view that the Plaintiff’s general meeting of shareholders approved or ratified the interim payment of retirement allowances by the Defendant. This part of the Defendant’

F) Finally, the defendant asserts that the plaintiff's interim settlement of retirement pay has been made in practice, such as making interim settlement of retirement pay to the officers before the enactment of the officer retirement benefit provision and filing a settlement of accounts at the next general meeting of shareholders. It goes against the good faith principle to seek the return of interim settlement of retirement pay against the defendant only.

As seen earlier, insofar as the interim settlement of retirement allowances against an officer is not allowed without the articles of incorporation or the resolution of the general meeting of shareholders, the Defendant’s holding of interim settlement of retirement allowances solely on the grounds as alleged by the Defendant cannot be justified, and thus, the Plaintiff’s seeking the return of interim settlement of retirement allowances with unjust enrichment to the Defendant cannot be deemed as violating the good faith principle. This part of

G) Sub-determination

Therefore, the Defendant is obligated to pay to the Plaintiff the amount of KRW 132,403,833 and damages for delay after April 30, 201, which the Plaintiff sought from the Plaintiff on or after the day following the day on which the Defendant received the said amount (Plaintiff asserts that the interim amount of the retirement pay received by the Defendant is KRW 137,533,333, but there is no evidence that the interim amount of the payment was paid in excess of the above recognized

C. Excessive enforcement plans and claims for damages equivalent to embezzlement

In this part, the grounds alleged by the Plaintiff in the trial while filing an appeal are not significantly different from the contents alleged by the Plaintiff in the first instance trial, and even if both the evidence submitted in the first instance trial and the evidence submitted by the Plaintiff in the trial are examined along with the allegations by the Plaintiff, the first instance court’s decision rejecting this part of the Plaintiff’s assertion is justifiable. As such, this part of the reasoning for this decision is the same as the part of the first instance court’s judgment No. 10 to No. 12, No. 11, 200, and thus,

5. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 132,403,833 won and damages for delay calculated by the rate of 5% per annum under the Civil Act from April 30, 2011 to April 12, 2017, which is reasonable for the defendant to dispute about the existence or scope of the obligation to pay to the plaintiff, and 15% per annum under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the next day to the date of full payment.

Thus, the plaintiff's claim of this case shall be accepted within the scope of the above recognition and the remaining claims shall be dismissed as there is no reason. Since the judgment of the court of first instance partially different conclusions are unfair, the part against the plaintiff falling under the above part of payment shall be revoked, and the order to pay the above amount shall be ordered. It is so decided as per Disposition.

Judges Soh-ho (Presiding Judge) Constitution of Kim Jong-ho

1) The Defendant appears to have not received retirement allowances on March 31, 2016, when retired from office.

심급 사건

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원심판결

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본문참조판례

-1992. 12. 22. 선고 92다28228 판결

-대법원 1978. 1. 10. 선고 77다1788 판결

-대법원 1979. 11. 27. 선고 79다1599 판결