[1] The meaning of "the duty" under Article 35 (1) of the Civil Code concerning corporation's tort liability

[2] The case holding that the tort liability of the association under Article 35 (1) of the Civil Act is recognized in case where the representative of the land subdivision and rearrangement association has jointly and severally guaranteed the debt of the execution company for the smooth operation of funds of the execution company, but the act of joint and several liability becomes null and void

[1] The reason why a corporation is liable to compensate for damages due to a representative's tort is required to cause damage due to the representative's act in relation to the representative's duty, but if it can be recognized as a representative's act in the appearance of an act, it should be viewed as an act in relation to the above duty even if it was intended to promote an individual's own interest or it was in violation of the statutory provisions.

[2] The case holding that the tort liability of the association is recognized under Article 35 (1) of the Civil Code in case where the representative of the land subdivision and rearrangement association has jointly and severally guaranteed the debt of the execution company for the smooth operation of the funds of the execution company, but the act of joint and several liability becomes null and void

[1] Articles 35(1) and 750 of the Civil Act / [2] Articles 35(1) and 750 of the Civil Act

[1] Supreme Court Decision 2003Da5986 Decided April 25, 2003 (Gong2003Ha, 1834) Decided August 26, 1969, Supreme Court Decision 2002Da27088 Decided July 25, 2003 (Gong2003Ha, 1834)

Plaintiff 1 and one other (Law Firm Sejong, Attorneys Jeon Jeon-soo et al., Counsel for the plaintiff-appellant)

The Han River District Land Partition Association

Supreme Court Decision 2001Da83197 Delivered on March 26, 2002

Daegu High Court Decision 2002Na2431 delivered on February 6, 2003

Of the part of the judgment below as to damages for delay, the part against the defendant ordering the plaintiff 1 to pay the amount of KRW 250,000,000 to the defendant and KRW 230,000 to the plaintiff 2 to May 31, 1998 and the part against the defendant ordering payment exceeding the amount of KRW 20,000 per annum from May 16, 1998 to May 31, 2003, and from the next day to the full payment day, the part against the defendant is dismissed, and each corresponding part of the plaintiffs' claims are dismissed. The remaining appeal by the defendant is dismissed. The total costs for the lawsuit are five minutes, and the plaintiffs are assessed against each of the defendant.

We examine the grounds of appeal.

The reason why a corporation is liable to compensate for damage caused by the representative's tort is that the act in relation to the representative's duties is caused by the act in relation to the representative's duties. However, if it can be recognized that the act is an act in relation to the representative's duties, it should be viewed as an act in relation to the above duties even if it was for the representative's own interest or it was in violation of the provisions of the law and regulations (see Supreme Court Decision 68Da2320 delivered on August 26, 1969).

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and found that the non-party, the representative of the defendant association, jointly and severally guaranteed the debt to the plaintiffs of Jinjin Construction Co., Ltd. (hereinafter referred to as " Jinjin Construction"), and did not go through the resolution of the association members' general meeting or the council of representatives, and held that the above act of joint and several liability is null and void. However, the plaintiffs concluded an agreement that the non-party's joint and several liability of the non-party is effective against the defendant, and agreed that the non-party's investment of 2 billion won should be made to Jinjin Construction, and based on the agreement that the non-party's joint and several liability of the non-party would be effective against the defendant, and the non-party lent the plaintiff 1, 50 million won to Jinjin Construction without the resolution of the union members' general meeting or the council of representatives, and the non-party did not obtain the above resolution after it. The non-party's joint and several liability was limited to the plaintiffs' damages.

In light of the above legal principles and the records, the above recognition and judgment of the court below is acceptable, and there is no error of law by misunderstanding facts against the rules of evidence or misunderstanding legal principles as to corporate tort liability, as otherwise alleged in the ground of appeal, and the court below acknowledged tort liability of the court below. However, in considering the plaintiffs' negligence as 50%, the measures restricting the liability of the defendant association as to the scope of damages to be compensated by the plaintiffs are included in the defendant's assertion that "the plaintiffs are jointly and severally guaranteed beyond the scope of their duties at will, and they knew or did not know that they did not have been resolved by the defendant's general assembly of association members or council of representatives," and it is not erroneous in the omission of judgment affecting the conclusion of the judgment, and the defendant's argument that "the acts of joint and several surety and several surety are null and void as anti-social juristic act or unfair juristic act" was raised only at the court of final appeal, and there is no need to look at this case's claim for damages due to corporate tort, and there is no reason to recognize the defendant's liability significantly unreasonable in light of equity principle.

However, we examine ex officio the portion of "interest rate prescribed by Presidential Decree" in the main sentence of Article 3 (1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings before the amendment (amended by Act No. 6868 of May 10, 2003) was decided as unconstitutional by the Constitutional Court on April 24, 2003. Accordingly, the above provision of the Act as amended and the main sentence of Article 3 (1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (amended by Presidential Decree No. 17981 of May 29, 2003) shall be 20 percent per annum of interest rate applicable to cases pending at the court at the time of the enforcement of the above Act as of June 1, 203. Thus, the court below's order damages for delay to be paid at the rate of five percent per annum per annum, which is civil interest rate until May 31, 2003 and damages for delay after the amendment shall be ordered to be paid at the rate of two five percent (203.

Therefore, among the part of the judgment of the court below as to damages for delay against the defendant, the part against the defendant ordering payment exceeding the amount of 250,000,000 won per annum from May 16, 1998 to May 31, 2003 as well as the amount of 230,000,000 won per annum under the Civil Act from May 16, 1998 to May 31, 2003, and the amount of damages against the defendant ordering payment exceeding the amount of 20,000 won per annum under the amended Special Act on the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. This part is sufficient to be directly decided by the court, and therefore it is decided to be self-convened. The plaintiffs' claims in the court below as to the above reversed part are dismissed. The defendant's remaining appeal by the defendant is dismissed.

Justices Shin Shin-chul (Presiding Justice)