In a case where Party A limited liability company entered into an entrustment contract with an entrusted owner operator to entrust the operation and management rights of cargo transportation services to an entrusted owner operator in kind with a cargo vehicle in its name, and the entrusted owner operator entered into the entrustment contract with the former owner operator, and caused Party B to operate the cargo vehicle by obtaining fuel subsidies from Party B, and Party C is a person who actually operates and manages Party A, and Party C was registered as Party A’s representative director; Party C was registered as Party B’s representative director by unlawful means such as changing Party C’s registration certificate, etc.; Party C was jointly and severally liable for damages equivalent to Party B’s liability for the aforementioned investigation into the Seoul Special-Purpose Trucking Transport Business Act after reporting and registering the replacement of the former Special-Purpose Trucking Trucking Transport Business Act to “general or special-purpose truck with which new supply is restricted”; and Party B was jointly and severally liable for damages due to Party B’s failure to comply with Article 567 and Article 401 of the Commercial Act, the case holding that Party A’s representative director and Party B was liable for damages due to Party B’s negligence and negligence.

A limited liability company is a company and a trustee company that, with respect to an entrusted truck under its owner's name, received a truck in kind from an entrusted owner operator, and entered into an entrustment contract with the owner operator to entrust the operation and management right of the cargo transportation services to the owner operator, and caused the owner operator to operate the cargo vehicle by receiving a fuel subsidy from Eul Metropolitan City. Byung is a person who actually operates and manages the Gap company, and is registered as the representative director of the Gap company. D is a person who was registered as the owner of the Eul company. D is a person who was registered as the representative director of the Eul company. The "special-purpose truck that newly supplies" under the Trucking Transport Business Act is changed into "general or special-purpose truck that newly supplies" by filing a report on the scrapping and registration with the owner operator to change the registration certificate, thereby seeking compensation for damages under Articles 567 and 401 of the Commercial Act.

The case holding that the above liability is limited to 70% of the liability in consideration of the fact that Byung and Byung were jointly and severally liable for damages equivalent to the fuel subsidies illegally received in accordance with Articles 567 and 401 (1) of the Commercial Act, since it was found that Eul was sufficiently aware of the investigation results, etc. on illegal scrapping and it was possible to prevent the illegal or excessive payment of the fuel subsidies to a certain extent, even though Eul was negligent in doing so, it constitutes an act in violation of the duty of loyalty and duty of care of directors, and Byung was negligent in performing the duty of care by using the name of the representative director, and since Byung was negligent in performing the duty of representative director intentionally or by gross negligence, Byung was jointly and severally liable for damages equivalent to the fuel subsidies received in Eul Metropolitan City.

Articles 401(1) and 567 of the Commercial Act; Article 3(5)1 (see current Article 3(7)1) of the former Trucking Transport Business Act (Amended by Act No. 7711, Dec. 7, 2005); Article 3(3) proviso and Article 43(2) of the Trucking Transport Business Act; Article 2 subparag. 4 and Article 9-14 of the Enforcement Decree of the Trucking Transport Business Act;

Gwangju Metropolitan City (Law Firm Ppuri, Attorneys Choi Byung-jin et al., Counsel for the defendant-appellant)

Defendant 1 and one other (Attorney Yang Jae-py, Counsel for the defendant-appellant)

Gwangju District Court Decision 2018Gahap52926 Decided June 21, 2019

May 27, 2020

1. The part of the judgment of the first instance, including the claim added in the trial, against the Defendants, shall be modified as follows.

A. Co-Defendant 1 in the first instance trial jointly and severally with the Plaintiff, and Defendant 1 shall pay each of the amount calculated by applying 194,642,904 won, Defendant 2 shall be 5% per annum from November 22, 2019 to July 22, 2020, and 15% per annum from the next day to the date of full payment.

B. The plaintiff's remaining claims against the defendants are all dismissed.

2. 30% of the total litigation cost between the Plaintiff and the Defendants shall be borne by the Plaintiff, and 70% shall be borne by the Defendants.

3. Paragraph 1(a) of this Article may be provisionally executed.

The part against the Defendants in the judgment of the first instance is revoked. The part against the Defendants in the judgment of the first instance is revoked. Co-Defendant 1, together with the Plaintiff; Defendant 1, 278,061,292 won; Defendant 2, Defendant 51,50,571 won; and each of the above money was paid with 15% interest per annum from the date following the delivery of the part of the application for change of the purport of the claim and the cause of the claim as of March 5, 2019 to the date of full payment (the Plaintiff was excluded from the judgment of the first instance as to the claim for damages due to existing joint tort; the Plaintiff’s claim for damages due to the nominal name as stipulated under Article 24 of the Commercial Act; and the claim for damages based on the nominal name as stipulated under Articles 567 and 401 of the Commercial Act or the claim for damages as stipulated under Article 35(2) of the Civil Act. The part of the judgment against the Defendant was excluded from the scope of the first instance judgment against the new Defendant.

1. Basic facts

A. Status of the parties

1) As trucking transport business operators prescribed by the Trucking Transport Business Act, New Round is a trucking business operator under the name of the trucking Transport Business Act, and is an entrustment contract with an entrusted owner operator to entrust the operation and management rights of trucking transport services to a truck owner operator who will be invested in kind. The former Round is a company entrusted with the operation and management rights of trucking transport services after obtaining fuel subsidies from the Plaintiff. The Nonparty is a company affiliated with the foregoing 11 company (including limited liability companies, 127 companies, limited liability companies, limited liability companies, truck transportation companies to limited liability companies, new global logistics companies, limited liability companies, limited liability companies, limited-liability companies, large-scale mining companies, fisheries companies, modern Doztex, limited liability companies, high-quality distribution companies, limited liability companies, and stock companies, from 25th to 25th 15th 27th 201 to 25th 27th 201, respectively.

2) The Plaintiff is a local government that granted fuel subsidies under Article 43(2) of the Trucking Transport Business Act and Article 9-14 of the Enforcement Decree of the same Act to a vehicle located in the name of a new global route from April 9, 2013 to August 2015.

(b) Administrative dispositions issued by the Gwangju Metropolitan City Mayor;

1) Article 3(5)1 of the former Trucking Transport Business Act (amended by Act No. 7100 of Jan. 20, 2004, and amended by Act No. 7711 of Dec. 7, 2005) added the requirement that “the Minister of Construction and Transportation shall meet the supply standards publicly announced by the Minister for each type of business in consideration of the demand for transportation of cargo” as one of the criteria for permission for trucking transport business when converting trucking transport business, which has been operated as a previous registered system, into a permit system, and one of the criteria for permission for change involving permission for trucking transport business or increase in the number of cargo. The “standard for supply of trucking transport business” established and publicly announced under the aforementioned provision, as a matter of principle, was prohibited from newly supplying trucking transport business (permission) and provided that it is possible to operate trucking transport business with permission from the Mayor/Do

2) Each truck indicated in the “the first truck number” column in the annexed sheet for the payment of oil subsidies, the ownership of which was registered under the name of the new world (hereinafter “instant truck”) was the “special-purpose truck that is permitted to newly supply” as prescribed by the Trucking Transport Business Act (hereinafter “the instant truck”). The Nonparty, etc. filed a report on the replacement of the vehicle-type truck (the proviso to Article 3(3) of the Trucking Transport Business Act, Article 2 subparag. 4 of the Enforcement Decree of the said Act, and the registration of the replacement of the “general or special-purpose truck, the new supply of which is restricted by unlawful means, from February 28, 2011 to June 13, 2012 (hereinafter “the supply-type truck”).

3) On August 24, 2015, the Gwangju Metropolitan City Mayor issued a disposition to recover fuel subsidies paid from each of the instant trucks to the new world (hereinafter “the instant recovery disposition”) and to refuse to pay fuel subsidies for each of the instant trucks in the future, on the ground that: “The new World Streets drafted the form of a report on the replacement of the vehicle for which the supply is permitted and falsely issued a letter of notification on the replacement of the repair to the Gwangju Metropolitan City Trucking Transport Business Association (hereinafter “Seoul Metropolitan City Trucking Transport Business Association”); and “The instant truck, the supply restriction vehicle, was registered as the permissible lane for the supply restriction vehicle and received the fuel subsidies under the Trucking Transport Business Act” (hereinafter “the instant recovery disposition”), and then made a disposition to refuse to pay fuel subsidies for the instant truck (hereinafter “the instant rejection disposition”).

4) The amount of the fuel subsidy that the Plaintiff paid to each of the instant trucks from April 9, 2013 to August 22, 2015 is the corresponding amount indicated in the column for the “oil payment” in the separate sheet of the payment details of fuel subsidies, and the aggregate amount is 329,61,863 won. Of them, the amount paid at the time Defendant 1 was registered as the representative director is 278,061,292 won, and the amount paid at the time when Defendant 2 was registered as the representative director is 51,50,571 won.

C. Administrative litigation and related criminal litigation against the recovery disposition, etc. of this case

1) The New World Logs filed a lawsuit against the Gwangju Metropolitan City Mayor seeking the restitution of the instant case and the revocation of the instant non-payment refusal disposition (Seoul District Court 2015Guhap13062), and the Gwangju District Court rendered a judgment dismissing all the claims of the New World Logs on April 14, 2016, and the said judgment became final and conclusive around that time as the new World Logs did not appeal.

2) Meanwhile, on July 26, 2017, the Nonparty, the actual operator of the New World Streets, was convicted on July 26, 2017 of the fact that “the Nonparty, as the following, reported and registered the scrapping of the freight truck in the name of the limited liability company actually operated by him/her and the limited liability company, and operated the trucking transport business using the relevant vehicle,” and that “the Nonparty, as the actual operator of the New World Streets, operated the trucking transport business using the relevant vehicle” (the Gwangju District Court Decision 2016Da1670 (two years of imprisonment with labor, six years of suspended execution), and the Gwangju District Court 2016No2948 (Dismissal)].

The Nonparty, included in the main text, changed the registration certificate concerning the cargo distribution company and the four truck vehicles, the ownership of which was registered in the name of the non-party in the name of the non-party in the manner of removing and reproducing the description of the alteration of the structure of the automobile registration certificate among the non-vehicle column of the non-vehicle column of the automobile registration certificate and the non-party in the name of the non-party, and exercised the altered registration certificate (use of altered official document) in order to obtain the notification of the repair for the scrapping from the Gwangju Cargo Transportation Association (use of altered official document) and registered the supply-permitted vehicle by the method of notification of the repair for the scrapping issued by the above method, and operated the truck transportation business using the above vehicle without the permission of change under the Trucking Transport Business Act.

3) The Nonparty: (a) reported and registered each of the instant trucks, the ownership of which was registered in the name of the New World Branch; and (b) operated the trucking transport business using such illegal means; and (c) thereby making the fuel subsidy to be illegally received for each of the instant trucks (the Nonparty’s tort committed by the Nonparty; hereinafter “instant tort”).

[Reasons for Recognition] Facts without dispute, entries in Gap evidence 1, 2, 4 through 7 (including provisional numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff

1) The Defendants, as the representative director of the New World branch, participated in, or aided at least in, the instant tort by the Nonparty. As such, the Defendants are liable for damages under Articles 567 and 210 of the Commercial Act. The Defendants, the representative director, also bear the liability for damages under Article 750 of the Civil Act, Article 760(3) of the Civil Act, Article 35(2) of the Civil Act, or Articles 389(3) and 210 of the Commercial Act. Accordingly, the Defendants, in collaboration with the New World branch, jointly paid the Plaintiff 278,061,292 won paid while the representative director was in office, and Defendant 2, as the representative director, shall pay damages for delay to the said amount.

2) Selectively, the Defendants, as directors of the New World Street, neglected to perform their duties intentionally or by gross negligence and thereby inflicted damage on the Plaintiff. Accordingly, in accordance with Articles 567 and 401 of the Commercial Act, the Defendants shall jointly and severally pay the said money and the damages for delay to the Plaintiff.

3) Preliminaryly, the Defendants: (a) allowed the Nonparty to conduct the business of a new global waterway license in their own name; and (b) caused the Nonparty to obtain a fuel subsidy from the Plaintiff through the tort in this case; (c) accordingly, each of the above fuel subsidy amounting to KRW 278,061, 292, and KRW 51,550,571 and delay damages shall be paid in accordance with Article 24 of the Commercial Act, depending on the name lender’s liability.

B. The Defendants

1) The Nonparty’s above act does not constitute a tort against the Plaintiff. In other words, since the granting and recovery of a fuel subsidy is a legal interest protected under the public law, tort liability is not established under the Civil Act, which is subject to infringement of legal interests protected under the private law, as a result of the act of receiving a fuel subsidy. The act of scrapping and the delivery and recovery of a fuel subsidy is not only the Plaintiff’s autonomous affairs but also the affairs delegated to the agency, not the Plaintiff’s autonomous affairs, but also the State can recover the fuel subsidy through the instant restitution disposition

Even if the loss incurred to the Plaintiff, the Nonparty did not intend to receive a higher amount of fuel subsidies, but did only commit the instant tort against the State, such as illegal scrapping, in order to change a more supply-restricted lane. Therefore, there is no proximate causal link between the Nonparty’s deception and the Plaintiff’s loss.

As such, since the Nonparty’s tort against the Plaintiff is not constituted, the Defendants’ joint tort liability or liability is not established.

2) Even if the Nonparty’s tort liability against the Plaintiff is recognized, the Defendants did not take part in or assist the Nonparty’s tort, and thus, the Defendants do not bear joint tort liability. If the Defendants’ joint tort is recognized, the Plaintiff may suspend the payment of fuel subsidies after October 21, 2014, which was notified by the head of the mine office of the administrative disposition against the Nonparty, pursuant to the Trucking Transport Business Act against the Nonparty, etc., given that the Plaintiff could suspend the payment of fuel subsidies after October 21, 2014, and thus, the fuel subsidies thereafter paid cannot be deemed as losses

3) Even if the Defendants’ liability for damages is recognized, the Plaintiff, at the latest on December 23, 2013 or around December 26, 2013, notified by the Commissioner of the Gwangju Provincial Police Agency of the case of the Defendants, recognized the contents of the instant tort and the occurrence of the offender and the damages therefrom, and thus, three-year extinctive prescription period has expired from that time.

4) Unless otherwise, the Plaintiff did not prevent the Nonparty’s unlawful act in this case, and even after becoming aware of the Nonparty’s unlawful act, the Plaintiff erred by continuously paying fuel subsidies and expanding the damages therefrom. Therefore, the lower court should have set off the negligence or limited liability of the Defendants.

3. Determination

(a) Formation of liability for damages under Articles 567 and 401 of the Commercial Act;

The plaintiff primarily claims the defendants' joint tort liability, Article 35(2) of the Civil Code, or Article 567 and Article 401 of the Commercial Code. Thus, the plaintiff first claims the liability for damages under Article 567 and Article 401 of the Commercial Code.

1) Relevant legal principles

○ The liability for damages against a third party of a director of a stock company under Article 401(1) of the Commercial Act is a requirement that the director neglects his/her duties due to bad faith or gross negligence. Thus, the liability for damages against a third party of the director of the stock company is merely a failure to perform his/her duties due to ordinary transactions. However, the liability for damages under Article 401(1) of the Commercial Act is not merely a failure to perform his/her duties due to bad faith or gross negligence, but it constitutes a failure to perform his/her duties due to bad faith or gross negligence (see, e.g., Supreme Court Decision 2000Da47316, Mar. 29, 2002). The representative director of the stock company, etc. delegated the whole duties of the representative director to another director, etc. and did not perform his/her duties entirely constitutes an act in violation of the director’s duty of loyalty and duty of care. Thus, even if the representative director is not a nominal representative director (see, e.g., Supreme Court Decision 2006Da2180).

Considering that the liability of a director for damages against a third party under Article 401 of the Commercial Act is a special liability recognized by the Commercial Act to protect the third party, there is no room to apply Article 766(1) of the Civil Act that provides for the short-term extinctive prescription of a general tort liability, and the extinctive prescription period of a general claim is ten years pursuant to Article 162(1) of the Civil Act (see Supreme Court Decision 2006Da82601, Feb. 14, 2008).

2) Facts of recognition

The following facts are not disputed between the parties, or can be acknowledged by taking into account the overall purport of the arguments in the above quoted evidence.

① Defendant 1 was registered as the representative director of each new global route from August 17, 2011 to April 2, 2015, and from April 3, 2015 to December 7, 2015, Defendant 2 was registered as the representative director of each new global route. The Defendants lent the name of the representative director upon Nonparty’s request, and subsequently, entrusted the Nonparty, etc. with all of the duties of the representative director and did not perform all of the duties of the representative director at all.

② The Nonparty, etc. committed the tort in the instant case where, under the name of the Defendants, he altered the registration certificate, exercised the altered registration certificate, and subsequently, he operated the trucking transport business using the truck of this case illegally registered each of the truck of this case after the alteration of the modified matters involving the expansion of the truck without permission under the Trucking Transport Business Act.

③ Due to the instant tort, from April 9, 2013 to August 2015, the Plaintiff paid KRW 329,611,863 in total, the fuel subsidies under Article 43(2) of the Trucking Transport Business Act and Article 9-14 of the Enforcement Decree of the same Act regarding each of the instant trucks in the name of a new global route, from April 9, 2013 to August 2015.

3) Grounds for liability

Examining the above facts in light of the relevant legal principles as seen earlier, the Defendants’ failure to delegate all of their duties to the Nonparty, etc. as the representative director of the New World branch and to perform the duties of the representative director at all constitutes an act of violating the duty of loyalty and duty of care of the directors. Accordingly, the Nonparty was able to commit the instant illegal act using the Defendants’ representative name. This was caused by the Nonparty’s intentional or gross negligence.

Therefore, with respect to the plaintiff who suffered damage equivalent to the illegally received fuel subsidy due to the tort of this case and the violation of the defendants' obligations, the new World Loys shall be liable for damages under Articles 567 and 210 of the Commercial Act, and the defendants shall be jointly and severally liable with the new World Loss under Articles 567 and 401 (1) of the Commercial Act. Thus, this part of the plaintiff's assertion is justified (as long as liability for damages under Articles 567 and 401 of the Commercial Act is acknowledged as mentioned above, as long as the plaintiff's selective assertion is recognized as liability for damages under Articles 750 of the Civil Act, Article 760 (3) of the Civil Act, Article 35 (2) of the Civil Act, Article 389 (3) of the Civil Act, Article 210 of the Commercial Act, or Article 24 of the Commercial Act as preliminary claim).

4) Limitation on liability

However, the above facts and cited evidence, and the following facts and circumstances revealed by the purport of the statement in the evidence Nos. 1 through 6 and the entire arguments, i.e., (i) the Gwangju Metropolitan City Police Agency notified the Plaintiff of the investigation results on illegal scrapping, and again, on December 23, 2013, the notification of the amount of fuel subsidies illegally paid in relation to illegal scrapping. The aforementioned notification included the non-party among the suspects subject to notification, and each of the instant trucks was included among the cargo vehicles subject to notification. The head of the Gwangju Metropolitan City Mining Government notified the Plaintiff of the suspension of its business for the reason that the Plaintiff borrowed the entire amount of the truck of this case to the Plaintiff on October 21, 2014, taking into account the fact that it was reasonable to prevent the non-party from taking into account the fact that the Defendants were negligent in paying the amount of fuel subsidies under Article 43(2) of the Trucking Transport Business Act, and Article 9-14 of the Enforcement Decree of the same Act, which was limited to the extent of damages incurred by the non-party.

5) Determination as to the defendants' assertion

A) As to the assertion that there was no loss and causation

The following circumstances are revealed by the Plaintiff’s presentation of the aforementioned evidence and the purport of the entire pleadings. ① The current trucking Transport Business Act provides that the competent government office shall take charge of the payment of automobile tax imposed pursuant to Article 136(1) of the Local Tax Act, as the financial resources of the Plaintiff’s vehicle for the operation of the automobile for each of the following reasons: (i) if the Defendants were to have been aware of the fact that the Defendants had been using the aforementioned illegal goods for their own purpose and for each of the following reasons, it cannot change the legal status of the Plaintiff’s illegal goods; and (ii) if the Defendants were to have been aware of the fact that the Defendants had been using the aforementioned illegal goods for their own purpose, it cannot be ruled out that the Defendants were liable for damages arising from the illegal goods delivery of the Plaintiff’s illegal goods under the name of the Nonparty or the Defendants, and (iii) if the Plaintiff’s illegal goods delivery of the Plaintiff’s illegal goods would not have any effect on the Nonparty’s wrongful goods delivery of the Plaintiff’s illegal goods delivery of the Plaintiff’s new goods supply of the instant goods.

Therefore, this part of the defendants' assertion cannot be accepted.

B) As to the assertion of extinctive prescription

As seen earlier, the liability for damages against a third party under Articles 567 and 401 of the Commercial Act is a special liability recognized by the Commercial Act to protect the third party. The damage liability is a general claim subject to the ten-year statute of limitations pursuant to Article 162(1) of the Civil Act, and the ten-year statute of limitations is applied to the Plaintiff’s claim, which is a local government, pursuant to Article 82(1) of the Local Finance Act. Accordingly, the five-year statute of limitations is applicable to the Plaintiff’s claim regarding the claim retroactive from April 9, 2018, which is the filing date of the instant lawsuit. Accordingly, the said statute of limitations has not yet expired. On the contrary, this part of the Defendants’ claim on the premise that the Plaintiff’s claim was based on the tort liability and is subject to the three-year short-term statute of limitations without any further need.

C) As to the assertion of limitation of liability or comparative negligence

In light of the fact that the “litigation for the recovery of oil subsidies and the revocation of a disposition for the refusal of payment” filed by the New Round shall become final and conclusive around April 14, 2016, as alleged by the Defendants, the submission of circumstances or the evidence alone, as alleged by the Defendants, are insufficient to recognize that the Plaintiff, who was notified by the Commissioner of the Gwangju Provincial Police Agency of the case of the offense of the Nonparty, etc., by the head of the Si/Gun/Gu around December 23, 2013 or around December 26, 2013 or around October 21, 2014, notified by the head of the Gwangju Metropolitan City Mining Office of the administrative disposition for the violation of the Trucking Transport Business Act, either specific and conclusive recognition of the contents of the tort in this case, the responsibility of the Defendants, and the occurrence of damages, or that the payment of the

Therefore, some of the circumstances alleged by the Defendants shall be reflected in the grounds for limitation of liability as seen earlier, but the remaining arguments by the Defendants cannot be accepted on a different premise.

B. Scope of liability for damages

As seen earlier, from April 9, 2013 to August 22, 2015, the amount of the fuel subsidies paid by the Plaintiff to each of the instant trucks in the name of the new world owned by the Plaintiff is the corresponding amount indicated in the column for the “oil payment” in the attached Table for the payment of fuel subsidies, and the aggregate amount is 329,61,863 won, and the amount paid at the time when Defendant 1 was registered as the representative director is 278,061,292 won, and the amount paid by Defendant 2 at the time when the representative director was registered as the representative director is 51,550,571. The Defendants’ liability is limited to 70%, as seen earlier.

Therefore, the scope of Defendant 1’s liability for damages is KRW 194,642,904 (=278,061,292 x 0.7). The scope of Defendant 2’s liability for damages is KRW 36,085,39 (=51,550,571 x 0.7).

C. Sub-decision

Therefore, the Defendants are jointly and severally liable to compensate the Plaintiff for damages under Articles 567 and 401 of the Commercial Act. Defendant 1 is jointly and severally liable to compensate the said damages; Defendant 2 is liable to compensate for the damages under the above damages; Defendant 36,085,39 won; and each of the above amounts is liable to compensate for damages under Articles 567 and 401 of the Commercial Act after the date of violation of each of the above obligations; and it is reasonable to raise a dispute as to the existence and scope of the Defendants’ obligations to compensate for damages under Article 567 and 401 of the Commercial Act from November 22, 2019 to November 22, 2019, with the statutory interest rate of 5% per annum under the Civil Act until July 22, 2020; Article 3(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings; Article 215(1)5(1) of the Addenda of the former Enforcement Decree of the Civil Procedure Act (amended by Presidential Decree No. 2519(2019).

4. Conclusion

Thus, the plaintiff's claim of this case against the defendants shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as it is without merit. Since the part against the defendants in the judgment of the court of first instance is unfair with different conclusions, the part against the defendants in the judgment of first instance, including the claims added in the trial, shall be modified as above. It is so decided as per Disposition.

[Attachment] List of Benefit Payments: Omitted

Judges Kim Tae-tae (Presiding Judge)