[Plaintiff-Appellant] Plaintiff (Law Firm Snung, Attorney Yu-ju, Counsel for plaintiff-appellant)

Lee Pus Smart Co., Ltd. (Law Firm Lee & Lee, Attorneys Kang Jin-jin, Counsel for the defendant-appellant)

September 30, 2010

Suwon District Court Decision 2009Gahap11712 Decided April 29, 2010

1. The part against the defendant in the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the above part shall be dismissed;

2. All costs of the lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 150,000,000 won with 40% interest per annum from October 8, 2008 to the day of complete payment.

The purport of appeal is as set forth in the Disposition.

1. Basic facts

The reasons for this court's explanation are as follows: "The defendant changed his argument that it was forged rather than stolen by the defendant's corporate seal affixed thereto." On the other hand, the statement and image of Eul 6, 8, and 9 are insufficient to recognize it, and there is no other evidence to acknowledge it, and since there is no other evidence to acknowledge it, all of the grounds for the judgment of the court of first instance are the same as the reasons for the judgment of the court of first instance. Thus, it is accepted as it is in accordance with Article 420 of the Civil Procedure Act.

2. The assertion and judgment

A. The plaintiff's assertion

The plaintiff argues that the non-party 1 is the actual president of the defendant, and he was acting as the president, and that the plaintiff was bound to believe that the non-party 1 had the authority to represent the defendant, so the defendant should be held liable for the expressive representative concerning the preparation of the loan certificate of this case by the non-party 1.

B. Determination

(1) Article 395 of the Commercial Act shall apply mutatis mutandis not only to cases where an apparent representative director performs a juristic act using his/her own name but also to cases where he/she performs an act using the name of another representative director without using his/her own name. In such a case of acting as an agent, the good faith or gross negligence of a third party is not against the existence of the apparent representative director, but also to whether he/she has the authority to conduct a juristic act by acting as an agent. In addition, in order to establish the liability of a corporation due to the act of an apparent representative director as stipulated in Article 395 of the Commercial Act, it does not require any negligence other than that of a third party who is the other party to the juristic act. However, the purport of the provision is to use a name that can be recognized as having the power of representation in appearance, rather than a representative director, and to promote the trust and safety of commercial transactions by protecting a third party in cases where there is a reason attributable to the company, and even if such act is deemed to have been considerably violating the duty of representation of a third party 20.

(2) According to the evidence of the plaintiff's submission, ① the non-party 1 played a leading role in opening the store of this case, such as purchasing the store of this case and providing the defendant's operating funds; ② the non-party 1 is the representative director of advanced DNA Co., Ltd., and all the non-party 4, 3, and 5 registered as the defendant's executive officer of the above company from the previous date; ③ the non-party 1, after purchasing the store of this case, was the defendant's president, and acted as if he independently handled the defendant's business (the non-party 1 used the name "non-party 1" to use the name "non-party 1" until the plaintiff prepares the loan certificate of this case; ④ the plaintiff and the non-party 7 leased the amount of KRW 50 million to the non-party 1, who received a receipt from the defendant's name (the non-party 7 claimed the payment of the loan to the defendant, but the defendant's claim was dismissed on May 11, 2010>

However, according to the statement of Gap 2, the testimony of the non-party 8 of the first instance trial witness and the purport of the whole pleadings, the plaintiff confirmed that the non-party 1 was not the representative director of the defendant at the time when the loan certificate of this case was prepared with the non-party 8, and that the non-party 1 was not the representative director of the defendant, and that the non-party 1 was not the defendant's authority to prepare the loan certificate of this case in the name of the defendant. Thus, despite the above facts, the plaintiff was gross negligence in believing that the non-party 1 was aware that the non-party 1's preparation of the loan certificate of this case was not due to the representative director's authority

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is unfair with some different conclusions, and it is so decided as per Disposition with the defendant's appeal being accepted.

Judges Kim Jong-ju (Presiding Judge)