[1] Whether a “public notice on detailed criteria for electric power generation business, standards for calculating electric charges, permissible error in the volume of electric power, and operation of electric power systems” prescribed and publicly notified by the Minister of Knowledge Economy pursuant to Article 7(2) of the Enforcement Decree of the Electric Utility Act constitutes “Acts and subordinate statutes” under Article 399(1) of the Commercial Act

[2] The case holding that in case where Gap and other shareholders of the Korea Electric Power Corporation filed a lawsuit seeking compensation for damages on the ground that Eul violated the laws and regulations of the Electric Utility Act and other Acts and subordinate statutes, or neglected their duties, and thereby determining the rate of increase in the electricity rates to the level below the overall cost required to supply electricity, thereby causing damage to the Korea Electric Power Corporation, the case holding that Eul cannot be deemed to have violated the laws and regulations

[1] Article 16 (1) of the Electric Utility Act provides that the Korea Electric Power Corporation shall prepare terms and conditions of electric charges and other supply terms and conditions and obtain authorization or authorization for modification from the Minister of Knowledge Economy, as prescribed by Presidential Decree. Article 7 (1) 1 of the Enforcement Decree of the Electric Utility Act provides that electric charges plus appropriate profits to the appropriate cost based on authorization or authorization for modification of the terms and conditions of the electric charges and other supply terms and conditions. Paragraph (2) of the same Article provides that detailed matters concerning the authorization or authorization for modification under each subparagraph of paragraph (1) shall be determined and publicly notified by the Minister of Knowledge Economy. Accordingly, the term “public notification of the business details, standards for calculating electric charges, electricity volume errors and electric power system operation business” (Article 2010-24 of the Ministry of Knowledge Economy’s notification) as determined and publicly notified by the Minister of Knowledge Economy (Article 2010-24 of the Enforcement Decree of the Electric Utility Act) is not only a provision prepared to determine appropriate costs and other supply terms and conditions by combining them with upper Acts and subordinate statutes to determine appropriate profits, but also constitutes a delegation or public notification under the aforementioned provisions or its purport.

[2] In a case where shareholders, including Gap, of the Korea Electric Power Corporation filed a lawsuit seeking compensation for damages against the Korea Electric Power Corporation on the grounds that the Korea Electric Power Corporation violated the laws and regulations, such as the Electric Utility Act, or neglected its duties, thereby causing damage to the Korea Electric Power Corporation, the case holding that the Korea Electric Power Corporation’s decision to determine the amount of increase in the cost of electricity supply by reflecting the terms and conditions of electricity rates and other supply terms and conditions or the change thereof in an indefinite concept should be deemed as belonging to the free discretion of the Minister of Knowledge Economy, which is the authority to authorize the Korea Electric Power Corporation to determine the amount of appropriate investment charges equivalent to the appropriate profits as stipulated in Article 7(1)1, and that the Korea Electric Power Corporation’s decision to determine the amount of increase in the cost of electricity supply charges at a lower level than that of the Korea Electric Power Corporation’s total cost increase in light of the fact that the Korea Electric Power Corporation’s decision to determine the amount of increase in the cost of electricity supply charges at a lower level than that of the Korea Electric Power Corporation’s general discretion.

[1] Articles 39(1) of the Commercial Act, Article 16 of the Electric Utility Act, Article 7(1)1 and (2) of the Enforcement Decree of the Electric Utility Act, and Articles 7(1)1 and (2) of the Enforcement Decree of the Electric Utility Act, and “public notice on the detailed standards for electric power generation business, standards for calculating electric charges, permissible errors in the electric meters and electric power system operation” (Notice of the Ministry of Knowledge Economy No. 2010-24), Articles 7, 8, 12, 13, 14, 15, 16, 17, and 18 of the Commercial Act / [2] Articles 399(1), 403, and 542-6 of the Electric Utility Act, Articles 1 and 16 of the Electric Utility Act, Article 7(1)1 and (2) of the Enforcement Decree of the Electric Utility Act, Article 4(1) of the former Enforcement Decree of the Price Stabilization Act (amended by Act No. 10523, May 23, 2010).

Plaintiff 1 and 13 others

Plaintiff 1 and 13 others (Law Firm, etc., Counsel for the plaintiff 1-appellant)

Defendant (Attorney Han-soo et al., Counsel for the defendant-appellant)

ELa District Damage Insurance Co., Ltd. (Law Firm LLC, Attorneys Kim Sejong-do et al., Counsel for the plaintiff-appellant)

August 24, 2012

1. Each lawsuit filed by the plaintiff 1, 12, and the plaintiff 3, 5, 6, and 11 shall be dismissed.

2. The plaintiff 2, 3, 4, 5, 6, 7, 7, 8, 9, 10, 11, 13, 14, and the plaintiff 1, 2, 4, 7, 8, 9, 10, 12, 13, and 14 are dismissed.

3. The costs of the lawsuit shall be borne by both the plaintiffs and the intervenors of the plaintiff co-litigation, including the cost of supplementary participation.

[Judgment of the court below]

The defendant shall pay 140,00,000,000 won to the Korea Electric Power Corporation (the address, representative omitted) and 20% interest per annum from the day following the delivery date of a copy of the complaint of this case to the day of full payment.

1. Basic facts

The following facts are not disputed between the parties, or acknowledged in full view of the following facts: Gap evidence 1-1-3, Gap evidence 14-1 through 15-3, Eul evidence 4-1-5, Eul evidence 4-1 to 5-1, and the whole purport of the arguments as to the fact inquiry of the Korea Electric Power Corporation in this court.

A. Status of the parties

(1) The Korea Electric Power Corporation is a corporation established under the Korea Electric Power Corporation Act for the purposes of the development, generation, transmission, transformation, distribution, and related businesses of electric resources, and is listed on the securities market, and the total number of issued stocks is 641,964,07 note.

(2) [Attachment 2] The remaining Plaintiffs except Plaintiff 12, as indicated in the Plaintiffs’ shareholding holding stocks, held the total amount of 75,020 shares issued by the Korea Electric Power Corporation at December 21, 2010 (from June 21, 2011 to June 21, 2011 below) and thereafter continued to hold at least 1/10,000 of the total number of shares issued by the Korea Electric Power Corporation (However, Plaintiff 1 did not own shares of the Korea Electric Power Corporation at the time of August 24, 2012, which is the date of closing the argument of the instant case, and Plaintiff 12 did not own shares of the Korea Electric Power Corporation at the time of December 21, 2010, and thereafter acquired shares of the Korea Electric Power Corporation).

(3) [Attachment] The Plaintiff Co-Litigation Intervenor is a shareholder who held a total of 77,580 shares as of October 6, 201, which was the date of application for intervention in co-litigation (However, the Plaintiff Co-Litigation Intervenor 3, 5, 6, and 11 did not hold shares of Korea Electric Power Corporation as of August 24, 201, such as transfer of the shares owned by the Plaintiff Co-Litigation 3, 5, 6, and 11).

(4) The Defendant served as the president of the Korea Electric Power Corporation from August 27, 2008 to August 29, 2011.

(5) As between April 2, 2009 and April 2, 2010, the Intervenor entered into an insurance policy with the Korea Electric Power Corporation, setting the maximum insured coverage limit of KRW 20 billion from April 2, 2009 to April 2, 201, the maximum insured coverage limit of KRW 50 billion from April 2, 201 to April 2, 201, and the maximum insured coverage limit of KRW 50 billion from April 2, 201 to April 2, 2012.

(b) The rate of increase in electric charges after November 13, 2008;

The Korea Electric Power Corporation raised the electricity rates, average 4.5% on November 13, 2008, average 3.9% on June 27, 2009, average 3.5% on August 1, 2010, average 4.9% on August 1, 201, and average 4.5% on December 5, 201.

C. The plaintiffs' claim, etc.

(1) On June 21, 2011, the Plaintiffs filed a claim for damages against the Defendant and directors of the Korea Electric Power Corporation on the ground that the Defendant and the directors of the Korea Electric Power Corporation did not fulfill their duty of due care as a good manager, such as determining the electric utility fee at a level below the general cost as set forth in the statutes, thereby incurring damage to Korea Electric Power Corporation.

(2) On July 21, 2011, Korea Electric Power Corporation respondeded to the purport that the Plaintiffs would not file a lawsuit against the Defendant and directors, and the Plaintiffs filed the instant lawsuit against the Defendant on August 2, 2011.

(d) Relevant statutes;

The provisions of the Commercial Act, the Korea Electric Power Corporation Act, the Electric Utility Act, the Enforcement Decree of the Electric Utility Act, the former Act on the Price Stabilization (amended by Act No. 10523, May 2, 201; hereinafter “Water Price Stabilization Act”), the Enforcement Decree of the Act on the Price Stabilization (amended by Presidential Decree No. 2227, Jun. 29, 2010; hereinafter “Enforcement Decree of the Water Price Stabilization Act”), the detailed criteria for electric generation business, the detailed criteria for electric generation business, the criteria for calculating electric charges, the criteria for calculating electric charges, the permissible error of electric meters, and the public notice on the operation of electric power systems (No. 2010-24, Feb. 10, 2010; hereinafter “instant public notice”) are as stated in the relevant Acts and subordinate statutes.

2. The parties' assertion

A. The plaintiffs and the intervenors of the plaintiff co-litigation

Although the Plaintiffs and the Intervenors of the Plaintiff and the Co-Litigation (hereinafter “Plaintiffs, etc.”) were employed as the president of the Korea Electric Power Corporation, at the time of determining the rate of increase in electric utility rates, the Defendant determined the rate of increase in electric utility rates at a level below the level meeting the general cost prescribed in the statutes at the time of determining the rate of increase in electric utility rates, and did not take any appropriate measures to compensate for the damages suffered by the Korea Electric Power Corporation, thereby incurring damages to the Korea Electric Power Corporation, which is the difference between the general cost and total revenue, total amount of KRW 7.2,02.8 billion, which is the difference between the general cost and total revenue amount of KRW 3.9 billion in 2009, and KRW 7.2,02.8 billion in total, the Defendant asserted that he is liable for compensating the Korea Electric Power Corporation for the above money, and by explicitly claiming that the Defendant is liable for paying the Defendant’s damages to the Korea Electric Power Corporation.

B. Defendant and Defendant Intervenor’s assertion

(1) The defendant's assertion

(A) The Defendant asserts that accepting the rate of increase in the electricity rates notified by the Minister of Knowledge Economy for the following reasons does not constitute a violation of fiduciary duty and loyalty.

1) The rate of increase in electric utility rates is determined by the Minister of Knowledge Economy, and directors of the Korea Electric Power Corporation, including the Defendant, have to accept the rate of increase in electric utility rates notified by the Republic of Korea or the Minister of Knowledge Economy, which is the largest shareholder of the Korea Electric Power Corporation and is the administrative supervisory authority of the Korea Electric Power Corporation. Therefore, it is unlikely that the Defendant would determine

2) The notice of this case is the standard applicable to the approval of the basic terms and conditions of supply. The Minister of Knowledge Economy has the authority to review and determine whether the appropriate rate of investment remuneration is appropriate, and has broad discretion to refuse to apply for the approval of the Korea Electric Power Corporation. The Minister of Knowledge Economy notifies the Korea Electric Power Corporation of the rate of increase in the notified rate in accordance with policy decisions in consideration of the public nature of electric charges and the impact of electric charges on the people’s lives

(B) In addition, the Defendant asserts that even if the Defendant’s act constitutes a violation of fiduciary duty and loyalty, and the rate of increase in the electricity rates notified by the Minister of Knowledge Economy does not conform formally to the provisions of the instant notice, its illegality is excluded in light of the relevant laws and regulations, legislative purpose, legislative intent, purpose of the establishment of Korea Electric Power Corporation, public interest in the establishment of

(C) Furthermore, the defendant asserts that even if the defendant applied for authorization according to the rate of increase calculated on the basis of the general cost, the Minister of Knowledge Economy refused it, and the rate of increase notified by the Minister of Knowledge Economy is bound to be determined, and thus, the same damage is anticipated to occur to the Korea Electric Power Corporation, and thus, the defendant should be exempted from liability. Since the damage claimed by the plaintiff et al. includes the amount generated and expanded due to the rapid increase of fuel price or other change in economic conditions, the plaintiff et al. did not claim and prove the scope

(2) Defendant’s assertion

(A) On the following grounds, the Intervenor asserts that the Defendant’s act does not constitute a violation of the statutory provisions of Article 399(1) of the Commercial Act.

1) The Korea Electric Power Corporation is merely obligated to prepare the basic terms and conditions of supply under the Electric Utility Act and supply electricity with the authorization of the Minister of Knowledge Economy, and the Enforcement Decree of the Electric Utility Act and the instant notice merely stipulate the criteria for the authorization of the Minister of Knowledge Economy, and do not impose a duty to determine electricity rates above the general cost level

2) The instant notice does not fall under the “Acts” under Article 399(1) of the Commercial Act, and even if the Defendant violated the instant notice, it does not bear liability for damages against the Korea Electric Power Corporation.

3) In light of the history and legislative process of the Electric Utility Act, the Electric Utility Act and its subordinate regulations were enacted or amended in order to prevent the formation of unfairly high-quality electric charges, and the Korea Electric Power Corporation cannot derive from the provisions thereof the obligation to set the electric utility charges more than the general cost.

4) In light of relevant laws and regulations, the Minister of Knowledge Economy is the authority to determine electric utility rates and the Minister of Knowledge Economy has discretion on the determination of electric utility rates.

(B) On the following grounds, the Intervenor asserts that the Defendant’s act does not constitute a neglect of duty under Article 399(1) of the Commercial Act.

1) In determining the Defendant’s neglect of duties, the Korea Electric Power Corporation should take into account the Korea Electric Power Corporation’s public corporation, the characteristics of electric goods requiring universal and stable supply, and the exclusive status of Korea Electric Power Corporation.

2) The notice of this case is merely based on the business process guidelines of the Ministry of Knowledge Economy, and it was difficult for the board of directors of the Korea Electric Power Corporation to expect to resolve the increase in electric utility rates of more than the general cost. The Minister of Knowledge Economy, which is a supervisory authority, has continued to allow the Korea Electric Power Corporation to calculate electric utility rates below the general cost, and the defendant is merely performing duties in accordance with the existing practices. Thus, the defendant cannot be deemed as neglecting his duties solely on the ground that

3) Considering the overall management performance evaluation of the Korea Electric Power Corporation during which the Defendant served as the representative director, the Defendant cannot be deemed to have neglected his/her duties.

(C) The Defendant asserts that there is no proximate causal link between the electricity fee and the business performance of the Korea Electric Power Corporation, inasmuch as the electricity fee and the business performance of the Korea Electric Power Corporation are likely to deteriorate because the exclusive status and other advantages offered to the Korea Electric Power Corporation are not recognized, if external factors, such as a change in oil prices, change in oil prices, etc., are different, and if the Defendant determines the electricity fee at a higher level which is likely to cause a unconditional black person, the Defendant’s Intervenor asserts that there

3. Determination on the legitimacy of the instant lawsuit

A. Determination as to whether the instant lawsuit by Plaintiffs 1, 3, 5, 6, and 11 was lawful

Article 403(1) of the Commercial Act provides that a shareholder who holds no less than 1/100 of the total number of issued and outstanding shares may file a lawsuit against the company to enforce its liability. Paragraph (3) of the same Article provides that a shareholder who holds no less than 1/100 of the total number of issued and outstanding shares may immediately file a lawsuit against the company if the company does not file a lawsuit within 30 days from the date on which the claim under the preceding paragraph was received. Paragraph (5) of the same Article provides that the shareholder who files a lawsuit under paragraphs (3) and (4) has less than 1/100 of the total number of issued and outstanding shares (excluding cases where the shareholder does not hold shares) after the filing of the lawsuit shall not affect the validity of the lawsuit against the company. Article 542-6(6) of the Commercial Act provides that a shareholder who holds no less than 10/10,000 of the total number of issued and outstanding shares of the company may exercise his right as a shareholder under Article 403.

B. Determination as to whether Plaintiff 12’s lawsuit of this case is legitimate

In full view of Articles 403(1), (3), and (5), and 542-6(6) of the Commercial Act as seen earlier, if a minority shareholder of a stock-listed corporation has continued to hold shares issued by the listed company six months prior to the filing of a lawsuit against the company in order to exercise a minority shareholder’s right under Article 403 of the Commercial Act, and if a shareholder did not hold shares issued by the listed company six months prior to the filing of the lawsuit against the company, it is reasonable to deem that such shareholder’s lawsuit was unlawful even if he/she held shares issued by the listed company six months prior to the filing of the lawsuit against the company. As such, the fact that Plaintiff 12 did not hold shares of the Korea Electric Power Corporation on December 21, 2010, which was six months prior to the filing of the lawsuit against the Korea Electric Power Corporation. Thus, the lawsuit by Plaintiff 12 is unlawful.

4. Whether the defendant's liability for damages arises (Judgment as to the plaintiffs and remaining intervenors of the plaintiff's co-litigation)

A. Facts of recognition

The following facts are not disputed between the parties, or acknowledged in full view of Gap evidence Nos. 4, 5, 10, 14-1 through 15-3, Eul evidence No. 4-1 through 5-1, Eul evidence No. 11-1 and 2, and the whole purport of the pleadings.

(1) the procedure for determining electric utility rates under the relevant legislation;

(a) The Korea Electric Power Corporation shall prepare terms and conditions on electric charges and other supply terms and conditions and apply for authorization or authorization of modification to the Minister of Knowledge Economy (Article 16(1) of the Electric Utility Act).

(B) The Minister of Knowledge Economy shall consult with the Minister of Strategy and Finance in advance before approving or modifying the above terms and conditions (Article 4 of the Price Stabilization Act).

(C) After deliberation by the Electrical Affairs Commission on the above terms and conditions, the Minister of Knowledge Economy shall authorize or modify the above terms and conditions (Article 16(2) of the Electric Utility Act).

(D) The Korea Electric Power Corporation shall keep the said terms and conditions in its place of business and place of business prior to the enforcement of the said terms and conditions so that consumers of electricity can read them and supply electricity in accordance with the said terms and conditions (Article 16(4) and (5) of the Electric Utility Act).

(2) The actual process, etc. of determining electric utility rates between 2008 and 2009

(A) The Korea Electric Power Corporation calculated the general cost and the necessary increase rate from the time when the settlement of accounts in the previous year was finalized. The accountant in charge of the Ministry of Knowledge Economy inside the appropriate investment fee rate calculated by taking into account the contents set forth in the instant notice and notified the Korea Electric Power Corporation by e

(B) The Korea Electric Power Corporation reported the general cost and the necessary increase rate to the Minister of Knowledge Economy and the Minister of Strategy and Finance. The Minister of Knowledge Economy, in consultation with the Minister of Strategy and Finance, calculated the rate of increase in electric charges by taking into account the impact of the electric charges on the price level, the financial standing of the Korea Electric Power Corporation, and the cost reduction scheme

(C) The Korea Electric Power Corporation has deliberated and resolved on the rate of increase in the electricity rates as notified by the Minister of Knowledge Economy, and has obtained authorization from the Minister of Knowledge Economy, and supplied electricity according to the terms and conditions reflecting the authorized electricity rates.

(D) At the time of calculating the rate of increase in the electricity rates and notifying the Korea Electric Power Corporation thereof, the Minister of Knowledge Economy shall not separately calculate the rate of increase in the electricity rates on the basis of the reasonable cost for the electricity rates or the reasonable investment fee rates.

(E) The rate of increase in electric charges calculated and notified by the Minister of Knowledge Economy was below the overall cost required for the supply of electricity calculated through its accounting data, etc.

B. Whether the defendant is liable for damages due to the violation of statutes

(1) Effect of the instant public notice

(A) "Acts and subordinate statutes" in Article 399 (1) of the Commercial Act mean Acts and subordinate statutes, i.e., Presidential Decrees, Ordinances of the Prime Minister, Ordinances of the Ministries, etc., within a general meaning of law, i.e., a merchant bank's business operation guidelines, guidelines for dealing with foreign currency funds, guidelines for foreign exchange and foreign exchange transaction, official documents for authorization for conclusion of foreign exchange contracts, foreign exchange management rules, and internal review management regulations of a merchant bank, etc. (see Supreme Court Decision 2004Da41651, 4168, Nov. 9, 2006). However, in a case where a certain statute grants the authority to determine specific matters of the law to a specific administrative agency and does not specify the specific procedures or methods of exercising the authority, the delegated administrative agency has a binding effect externally in combination with the above law and its Enforcement Decree, and there are no special circumstances that clearly conflict with the purpose or purpose of the public notice or the purport of the law, etc. (see Supreme Court Decision 2004Du94094.).

(B) As to the instant case, Article 16(1) of the Electric Utility Act provides that the Korea Electric Utility Corporation shall prepare terms and conditions for electricity rates and other supply terms and conditions and obtain authorization from the Minister of Knowledge Economy, as prescribed by Presidential Decree. Article 7(1)1 of the Enforcement Decree of the Electric Utility Act provides that the electricity rates shall be calculated by adding an appropriate cost to the appropriate cost, and detailed matters concerning the standards for authorization or authorization for modification under each subparagraph of Article 7(1) of the Enforcement Decree of the Electric Utility Act are determined and publicly notified by the Minister of Knowledge Economy. The notice of the instant case is prepared to determine the standards for authorization of the electricity rates and other supply terms and conditions or for modification thereof with delegation from superior laws and subordinate statutes. In addition, in light of the structure and purport of the provision, it is difficult to deem that the notice of the instant case exceeds the upper delegation limits or it does not constitute a comprehensive delegation, and it does not constitute a violation of the Enforcement Decree of the Electric Utility Act or the Enforcement Decree of the Electric Utility Act.

(2) Whether there was a violation of laws such as the Electric Utility Act

(A) The Korea Electric Power Corporation shall deliberate and decide on the rate of increase in electric utility rates as notified by the board of directors of the Korea Electric Power Corporation, and apply to the Minister of Knowledge Economy for the authorization, calculate the rate of increase in electric utility rates separately at the time when calculating the rate of increase in electric utility rates and notifying the Korea Electric Power Corporation thereof, and fails to calculate the rate of increase in electric utility rates based on it. The above rate of increase in electric utility rates is recognized as above.

(나) 그러나 한편 갑 제15호증의 1, 2, 3, 을 제4호증의 1 내지 제5호증의 1, 을 제11호증의 1, 2, 을 제13호증의 1, 2의 각 기재, 이 법원의 한국전력공사에 대한 사실조회 결과에 변론 전체의 취지를 종합하면, 한국전력공사는 2008년경과 2009년경 지식경제부장관에게 전기요금에 관한 총괄원가와 필요인상률을 보고하면서 연료비 상승 등을 이유로 전기요금이 인상되어야 한다고 보고하였으나, 지식경제부장관은 전기요금 인상에 따른 물가상승이 우려되고, 일부 전기요금 인상요인은 한국전력공사의 비용절감노력으로 흡수할 수 있다는 등의 판단하에 한국전력공사가 보고한 필요인상률에 미치지 못하는 수준에서 전기요금 인상률을 산정하여 한국전력공사에 통보한 사실을 인정할 수 있고, 여기에 앞서 든 증거 등에 의하여 인정되는 다음과 같은 사정, 즉 ① 전기사업법 시행령 제7조 제1항 제1호 가 인가 또는 변경인가의 기준으로 전기요금이 적정원가에 적정이윤을 더한 것일 것이라고 규정하고 있고, 제2항 은 그 세부적인 사항은 지식경제부장관이 정하여 고시하도록 규정하고 있는바, 전기요금에 대한 인가를 함에 있어 그 기준이 되는 적정원가와 적정이윤이 불확정개념으로 규정되어 있어 이들을 어떠한 자료를 기초로 어떠한 요소를 고려하여 결정할 것인가는 그 인가권자인 지식경제부장관의 고유한 정책적인 판단에 맡겨진 것으로서 자유재량에 속하는 것으로 봄이 상당한 점, ② 이 사건 고시 제17조 제1항은 적정투자보수율은 전기사업의 자본비용, 위험도, 공금리수준, 물가상승률, 당해 회계연도의 재투자 및 시설확장계획, 원리금상환계획, 물가전망 등을 고려하여 전기사업의 기업성과 공익성을 조화시킬 수 있는 수준에서 결정되어야 한다고 규정하고 있는바, 전기사업법 시행령 제7조 제1항 제1호 에서 정한 적정이윤에 해당하는 적정투자보수를 산정함에 있어 그 기준이 되는 적정투자보수율도 불확정개념이어서 이를 어떤 수준에서 결정할 것인가도 지식경제부장관의 위와 같은 자유재량에 속하는 것으로 봄이 상당한 점, ③ 전기사업법은 전기사업에 관한 기본제도를 확립하고 전기사업의 경쟁을 촉진함으로써 전기사업의 건전한 발전을 도모하고 전기사용자의 이익을 보호하여 국민경제의 발전에 이바지함을 목적( 제1조 )으로 제정된 법률로서, 지식경제부장관에게 전력수급의 안정과 전력산업의 경쟁촉진 등에 관한 기본적이고 종합적인 시책을 마련하는 책무를 부과하고 있고( 제3조 ), 전기사업자에게 전기사용자의 이익을 보호하기 위한 방안을 마련할 의무( 제4조 )와 전기의 보편적 공급에 이바지할 의무를 부담시키고 있으며( 제6조 제1항 ), 전기사업자는 지식경제부장관의 허가를 받아야 한다고 규정하고 있고( 제7조 등), 발전사업자 및 전기판매사업자에게는 정당한 사유 없이 전기의 공급을 거부하여서는 아니 된다는 의무를 부과하고 있으며( 제14조 ), 전기요금에 대해서는 지식경제부장관의 인가를 받아야 한다고 규정하고 있고( 제16조 ), 전기사업자에게는 전력시장에서의 공정한 경쟁을 해치거나 전기사용자의 이익을 해칠 우려가 있는 일정한 행위를 하지 아니할 의무를 부담시키고 있으며( 제21조 ), 전기사업법에서 정한 일련의 규정을 위반한 자에 대한 벌칙 규정을 규정하고 있는바( 제100조 등), 이러한 내용에 비추어 보면, 전기사업법은 전기사업의 독점성을 인정함과 동시에 그 통제와 감독을 철저히 하여 전기사업자의 사회적 책임과 전기사업의 공공성 및 공익성을 강조하고 있는 점, ④ 한국전력공사법 제1조 는 이 법은 한국전력공사를 설립하여 전원개발을 촉진하고 전기사업의 합리적인 운영을 기함으로써 전력수급의 안정을 도모하고 국민경제 발전에 이바지하게 함을 목적으로 한다고 규정하고 있고, 정부가 100분의 51 이상을 출자하도록 규정하고 있으며( 제4조 ), 정부의 주주권은 지식경제부장관이 기획재정부장관과 협의하여 행사하도록 하면서( 제6조 ), 한국전력공사 임원의 선임은 주주총회의 의결을 거치도록 규정하고 있고( 제10조 ), 한국전력공사의 사업 범위를 한정하며( 제13조 ), 이익금의 처리 방법( 제14조 ), 주식에 대한 배당 순서( 제15조 ), 사채의 발행( 제16조 ) 등을 규정하고 있고, 지식경제부장관에게 한국전력공사의 일정한 업무에 대한 지도·감독권을 부여하고 있는 등( 제18조 ), 한국전력공사법과 공공기관의 운영에 관한 법률에 규정된 것을 제외하고는 상법 중 주식회사에 관한 규정을 적용하도록 하면서도( 제19조 제2항 ), 정부가 한국전력공사를 통제하고 감독할 수 있도록 정하고, 아울러 공공기관으로서 한국전력공사의 책임을 강조하고 있는 점, ⑤ 전기는 국민의 일상생활에 필요불가결한 자원이어서, 전기요금이 상승할 경우 그로 인한 물가상승 등 국민경제에 일정한 부담을 가져올 것이 예상되는 점, ⑥ 반면, 한국전력공사는 전기판매에 독점적 지위를 누리고 있어 정부의 통제나 감독이 없다면 전기요금을 부당하게 인상하거나 그 운영을 방만하게 할 가능성을 배제할 수 없는 점, ⑦ 전기사업법과 한국전력공사법의 규정 내용, 전기사업자의 사회적 책임, 전기사업의 공공성과 공익성, 공공기관으로서 한국전력공사의 지위, 전기판매업에 관한 한국전력공사의 독점적 지위 등을 고려하면, 한국전력공사의 전기요금 결정에 대한 일정한 통제와 감독의 필요가 있고, 전기사업법이 지식경제부장관에게 전기요금에 대한 인가권을 가지도록 규정한 것은 이러한 점을 반영한 것으로 볼 수 있으며, 따라서 전기사업법 제16조 제1항 의 위임을 받아 제정된 전기사업법 시행령 제7조 제1항 제1호 는 한국전력공사가 전기공급에 소요된 원가를 보상받을 수 있는 수준으로 전기요금을 결정하기 위한 측면 외에도 한국전력공사가 전기요금을 자의적으로 높게 결정하거나 전기요금이 국민경제에 미치는 영향 등을 고려하여 전기요금을 일정한 수준 이상으로 인상하지 못하도록 정부가 통제하기 위한 목적으로 입법된 것으로 볼 수 있는 점, ⑧ 물가안정법 제4조 제1항 에 따라 공공요금의 산정원칙 등을 정한 물가안정법 시행령 제6조 제1항 은 공공요금은 공공서비스의 제공에 드는 총괄원가를 보상하는 수준에서 결정하여야 한다고 규정하고, 제2항 은 총괄원가는 공공서비스를 제공하는 자가 성실하고 능률적으로 경영한다는 전제하에 해당 공공서비스를 제공하는 데에 드는 적정원가와 해당 공공서비스의 제공에 사용되는 자산에 대한 적정투자보수를 더한 금액으로 한다고 규정하여 전기사업법 시행령 제7조 제1항 제1호 와 동일한 내용을 보다 구체적으로 정하고 있고, 이는 이 사건 고시의 일부 규정과 동일한 내용을 규정한 것인데, 물가안정법이 물가의 안정을 기함으로써 소비자의 권익을 보호함과 아울러 국민생활과 국민경제의 안정 및 발전에 기여함을 목적으로 제정된 법률( 제1조 )임을 감안하여 볼 때, 물가안정법 시행령 제6조 와 전기사업법 시행령 제7조 제1항 제1호 의 입법 목적은 기본적으로 물가안정에 있는 것으로 볼 수 있는 점 등을 종합하여 보면, 전기사업법 등 관련 법령에서 정한 인가기준이 한국전력공사가 직접 그 회계자료 등을 바탕으로 산정한 총괄원가를 기준으로, 반드시 이를 보상하는 수준에서 전기요금이 산정되어야 하거나 같은 수준으로 인가가 이루어져야 하는 것을 의미하는 것으로 보기 어렵고, 물가상승, 한국전력공사의 비용절감노력 등을 반영하여 위 총괄원가보다 낮은 수준에서 전기요금을 산정해서 이에 대해 인가 신청을 하는 것도 전기사업법 등 관련 법령에서 정한 인가기준에 부합하는 것으로 봄이 상당하다 할 것이어서, 한국전력공사가 인가 신청한 전기요금이 한국전력공사가 산출한 총괄원가를 보상받을 수 있는 수준에 미치지 못하거나 지식경제부장관에게 물가상승, 한국전력공사의 비용절감노력 등에 중점을 두어 지식경제부장관이 산정한 전기요금 인상률을 반영한 전기요금으로 인가 신청을 하였다 하더라도, 전기사업법 등 관련 법령이 정한 인가기준에 반하는 것으로 보기 어려워, 위 (가)항에서 인정한 사실만으로는 피고가 법령을 위반한 것으로 단정하기에 부족하고, 달리 이와 같이 인정할 증거가 없으므로, 피고의 법령 위반을 전제로 한 원고 등의 위 주장은 더 나아가 살필 필요 없이 이유 없다.

C. Whether the defendant is liable for damages due to the defendant's neglect of duty

(1) Directors are obliged to faithfully perform their duties on behalf of the company with the duty of due care as a good manager, and shall compensate for damages to the company if they inflict losses on the company due to their breach of the duty of due care or good faith. However, the director of the company has discretion to make a decision on the management of the company within the scope of the purpose stipulated in the articles of incorporation. If the director made a decision within the reasonable choice required as a business person and faithfully performed his duties, he shall not be held liable for damages to the company. In this case, the director shall not be held liable for damages to the company, and the scope of the duty of due care or good faith to be borne by the director shall be determined in consideration of all the circumstances such as the size of the company, the type and character of the business

(2) The rate of increase in electric utility rates calculated and notified to the Korea Electric Power Corporation by the Minister of Knowledge Economy is a level below the overall cost calculated by the Korea Electric Power Corporation through its accounting data, etc., and the Korea Electric Power Corporation has deliberated and resolved as it is and applied for authorization to the Minister of Knowledge Economy, as seen earlier.

However, the following circumstances are acknowledged by the Korea Electric Power Corporation. ① The Minister of Knowledge Economy under the related Acts and subordinate statutes, such as the Electric Utility Act, has discretion in calculating the appropriate cost and adequate profit of the electric utility charges, which are the criteria for the approval of the Korea Electric Power Corporation. ② The administrative agency may guide, recommend, or advise a specific person to realize specific administrative purposes within the scope of its competent duties (Article 2 subparag. 3 of the Administrative Procedures Act). The calculation of the rate of increase in the electric utility charges in advance and notify it to the Korea Electric Power Corporation is deemed to fall under the administrative guidance given by the Minister of Knowledge Economy within the scope of its competent duties before exercising the right to authorize the electric utility charges. ③ In light of the current process of determining the electric utility rates, it is assumed that the application for the approval was rejected by the Korea Electric Power Corporation without reflecting the rate of increase in the electric utility charges notified by the Minister of Knowledge Economy, ④ The Defendant’s application for the approval of the Korea Electric Power Corporation’s inherent interest and interest, and it appears that it was difficult for the Minister of Knowledge Economy to consider the above application for the approval of the Korea Electric Power Corporation.

5. Conclusion

Therefore, the suit of this case by plaintiffs 1, 12, and the plaintiff 3, 5, 6, and 11 is dismissed, and the remaining plaintiffs and remaining co-litigants' claims of this case are dismissed as they are without merit. It is so decided as per Disposition.

[Attachment] The holding of the Plaintiffs’ shares: omitted

[Attachment] The current status of shares held by the Plaintiff Co-Litigation Intervenor: omitted

[Attachment] Relevant Statutes: omitted

Judges Western Chang-won (Presiding Judge) (Presiding Judge)

Note 1) In the instant case, the notice of Note 5 ought to be partially applied, however, considering the content of Note 5 and Note 6, the difference seems not to affect the outcome of the instant case. As such, the following is not classified: