A. Whether a claim for damages against a tort caused by the abuse of representative's power of representation by a representative director of a stock company can also be exercised on the ground of a tort in addition to the claim for damages (affirmative)

B. In the above case, whether a claim for damages caused by a tort is extinguished in a case where a director’s liability under Article 399 of the Commercial Act was exempted with the consent of the total shareholder (negative)

(c) A case where the waiver of a claim against the representative director cannot be effective through the public notice of the balance sheet; and

A. In a case where the representative director of a stock company has suffered damage as a result of issuing a number of shares in the company's name or harming another person's endorsement of the company's name in a promissory note issued by another person for his personal use, the stock company concerned can exercise the right to claim damages under Article 399 of the Commercial Act, regardless of whether the above acts of the representative director constitute transactions that conflict with interest between directors and the company under Article 398 of the Commercial Act, on the ground that the above acts of the representative director constitute transactions that conflict with interest of the company and the company,

B. If a resolution was adopted to dispose of the amount suffered by the representative director’s act as a special loss with the consent of the total shareholder, it would immediately constitute an exemption from liability of a director under Article 400 of the Commercial Act, which is the cause of the extinguishment of liability of a director under Article 400 of the Commercial Act, but the right to claim damages legally extinguished cannot be deemed extinguished even if the right under Article 399 of the

C. In a case where the special shareholders' meeting resolves to dispose of the claims against the representative director as temporary special losses at the special shareholders' meeting, and the settlement of accounts is finalized by appropriating the claims against the representative director as temporary special losses on the company's account books, and where the balance sheet was announced in daily newspapers and the disposal of the claims is withdrawn by the special losses expenses and reserved in the company's asset account, it cannot be deemed that the expression of intent to waive the claims was in a situation where the debtor could have known as a summary of the debtor

B. Article 399 of the Commercial Act, Article 750 of the Civil Act. Article 400 of the Commercial Act. Article 111 of the Civil Act, Article 506 of the Corporate Tax Act, Article 94-2(1)1 of the Corporate Tax Act

Attorney Cho Young-chul et al., Counsel for the defendant-appellant

Head of the tax office;

Seoul High Court Decision 86Gu108 delivered on July 8, 1987

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

As to the Grounds of Appeal:

In case where the representative director of a stock company has suffered damage due to the company's fulfillment of its obligation to pay the company's name in the promissory note issued by another person for the personal use of the company's name, the stock company can exercise the right to claim damages under Article 399 of the Commercial Act regardless of whether the above act of the representative director constitutes a transaction in conflict with the interests between directors and the company under Article 398 of the Commercial Act, and also can exercise the right to claim damages on the ground of an abuse of power of representation.

In addition, if the company made a resolution to treat the amount suffered by the representative director's above act as a special loss with the consent of the total shareholder, it shall be immediately an exemption from the liability of the director under Article 400 of the Commercial Act. Thus, when the consent of the total shareholder is obtained by individual means, it shall not be made to the representative director from the time when the consent of the last shareholder is obtained, when it is obtained by the general meeting of shareholders in a lump sum, such as the resolution of the general meeting of shareholders, from the time when the general meeting is closed to the end of the general meeting concerned, and in the case where the right to claim damages is legally extinguished, it shall be the object of the calculation in addition to corporate

However, as seen above, the legally extinguished claim for damages is limited to the rights stipulated in Article 399 of the Commercial Act, and it cannot be deemed that the claim for damages due to a tort is extinguished. The reason is that the claim for damages and the claim for damages due to a tort under Article 399 of the Commercial Act is different from the requirements and grounds for the occurrence of each right, and that the former is based on the method and effect of Article 400 of the Commercial Act while the latter is based on the method and effect of Article 506 of the Civil Act.

Of course, it is natural to view that the intention of the corporation which exempted the representative director's liability for damages with the consent of the total shareholder included the claim for tort, but the waiver of the claim for damages caused by tort should have reached the debtor or should have known to the debtor, but prior to that, the declaration of intent of exemption can be withdrawn with the freedom of expression of intent of exemption. As such, if the declaration of intent of exemption is legally withdrawn due to the waiver of the claim, the claim should be treated as being reserved within the company's internal settlement of accounts and tax adjustment calculation.

In this case, according to the reasoning of the judgment below, Nonparty 1, the former representative director of the Plaintiff’s company, who renounced the above bonds to the outside of the shareholders’ meeting for the purpose of his personal use from January 10, 1979 to April 10 of the same year. The court below determined that the above bonds were disposed of by the 192,50 won in the name of the Plaintiff company or promissory notes issued by another person for the purpose of using them for his own personal use regardless of the Plaintiff’s business. The court below determined that the above bonds were disposed of by the 19th shareholder’s non-party company’s non-party 1’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party company’s non-party 1’s non-party company’s non-party 1’s non-party company’s non-party 1’s non-party company’s non-party 1’s non-party company’s non-party company’s non-party losses.

It is without merit that this appeal is dismissed, and it is so decided as per Disposition by the assent of all participating judges.

Justices Kim Yong-ju (Presiding Justice)