2015Da45451 Guarantee Obligations

Co., Ltd.

Attorney Jeong-il et al., Counsel for the defendant-appellant

Treatment Industry Development Corporation

Law Firm LLC et al., Counsel for the defendant-appellant-appellant

Seoul High Court Decision 2014Na10801 Decided July 10, 2015

February 18, 2021

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Whether the Plaintiff may be protected as “third party of good faith” for the Defendant’s guarantee without a resolution of the board of directors (ground of appeal No. 3)

A. Key issue

Although the representative director of a corporation is required to conduct a certain transaction according to the resolution of the board of directors, the issue of this case is how to protect the third party, who is the other party to the transaction, in the case where the transaction was conducted without the

B. The representative director’s authority and the representative director’s resolution by the board of directors generally can perform all judicial or extra-judicial acts within the scope of the company’s legal capacity (Article 389(3) and Article 209(1) of the Commercial Act). However, such representative authority may be restricted by law (hereinafter referred to as “legal restriction”), and may be limited by internal procedures, such as the articles of incorporation, resolution by the board of directors, and internal regulations (hereinafter referred to as “internal restrictions”).

Article 393(1) of the Commercial Act provides that “The disposal and transfer of important assets, and the borrowing of large-scale assets, etc. shall be subject to a resolution by the board of directors.” Therefore, the board of directors of a stock company shall not be entrusted to the representative director without a direct resolution by the board of directors, in the event a stock company disposes of important assets, borrows large-scale assets, etc. Therefore, the board of directors may not entrust to the representative director without a direct resolution, in other words, the execution of important business that is not entrusted to the representative director general and specific, which is not subject to daily business, must be subject to a resolution by the board of directors, regardless of whether the articles of incorporation or the regulations of the board of directors stipulate the resolution by the board of directors (see Supreme Court Decisions 2009Da55808, Jan. 14, 2010; 2019Da20463, Aug. 14, 2019).

In addition, even if the representative director does not fall under the "business of disposing of important assets or borrowing large-scale assets" under Article 393 (1) of the Commercial Code, it can be determined by the resolution of the board of directors when the representative director performs a certain act in the articles of incorporation or the regulations of the board of directors of the corporation, which is separate from the legal limitation.

(c) Internal restrictions on the representative director's representative authority and protection of a third party in good faith;

The representative director of a corporation externally and externally has the authority to represent the corporation and perform the business affairs of the corporation. The representative director is not a substitute for the act of the corporation, but a company itself is an institution that conducts the act of the company. The company realizes the intent determined through the general meeting of shareholders or the board of directors, etc. through the representative director, and the act of the representative director is the act of the company. The Commercial Act provides that the restriction on the representative director's right to represent shall not be asserted against a third party acting in good faith (Article 389(3)

A representative director shall have the right of representation only within the scope of the limited scope. However, even if such restriction is an act in violation of the law, if it does not deviate from the company’s legal capacity, it is reasonable to believe that such restriction is the representative act of the company, and such trust should be protected (see, e.g., Supreme Court Decision 97Da18059, Aug. 29, 1997). Even in cases where the authority of the representative director is restricted by the resolution of the board of directors regarding a certain external transaction, the resolution of the board of directors is merely an internal decision-making procedure of the company, and barring any special circumstance, deeming that the representative of the company trusted that he/she would have completed the internal procedure of the company necessary for the transaction (see, e.g., Supreme Court Decisions 2005Da480, May 27, 2005; 2006Da4777, Mar. 26, 2009).

Unless there exist any circumstances, it cannot be deemed that there was an obligation to take measures such as confirming whether a resolution of the board of directors was made (see Supreme Court Decision 2006Da47677, supra).

D. Article 393(1) of the Commercial Act that limits the representative director’s power of representation and the power of representation of a bona fide third-party protection representative director under Article 393(1) of the Commercial Act shall be uniformly applied to a person who does not know or have failed to understand the existence of such provision properly. Since the application cannot be avoided on the ground of mistake in the land of law or the legal assessment, the restriction under this provision may be deemed to be different from internal restrictions. However, even in a case where the representative director of a stock company conducts a transaction without a resolution of the board of directors regarding “Disposal and transfer of important assets, and borrowing of large-scale assets,” the validity of the transaction should be deemed to be the same as the case of the internal restriction in this case.

(1) Whether a certain transaction constitutes disposal and transfer of important assets, and borrowing of large-scale assets, etc. under Article 393(1) of the Commercial Act must be determined depending on whether it is appropriate to place the transaction to the representative director’s decision in light of the value of assets and the weight of the total assets in the size of the company, the business or property status of the company, the management status, the purpose or use of assets, the company’s ordinary business relationship, and the previous process of business (see, e.g., Supreme Court Decisions 2005Da3649, Jul. 28, 2005; 2007Da23807, May 15, 2008). However, from the standpoint of the other party to the transaction with the representative director, not only need to know the specific situation of the company, but also need to know about the fact that the other party conducts a transaction with the company solely on the basis of such circumstances. Even if the other party is aware of such circumstances, it is not easy to determine whether the transaction constitutes an asset acquisition or transfer.

(2) In light of such points, if the basis for demanding a resolution of the board of directors is either Article 393(1) of the Commercial Act or the criteria for protecting the other party depending on whether it is an internal provision, such as the articles of association, etc., the legal relationship becomes unclear if the standards for protecting the other party are different. The distinction between gross negligence and transitional room is relative and its boundary is ambiguous, and the existence and seriousness of negligence is bound to be determined by considering specific circumstances in individual cases. Determination of the effect of transactions without a resolution of the board of

If the resolution of the board of directors is required, the other party to the "faithless negligence" shall be protected, but if the articles of incorporation, etc. provides that the resolution of the board of directors shall be required, the so-called theory that distinction between the two parties to the "faithless negligence" and the protection of the other party to the transaction involving the company brings about unnecessary confusion and the transaction cost. Accordingly, if such an opinion is followed, even if the company requires the resolution of the board of directors in its internal regulations, such as the articles of incorporation, it is intended to narrow the scope of the protection of the other party by asserting that the transaction constitutes a matter stipulated in Article 393 (1) of the Commercial Act. However, whether the transaction constitutes "disposal and transfer of important assets" and "loan of large-scale assets, etc." under Article 393 (1) of the Commercial Act should be determined

there is a concern that the psychological burden may be increased.

On the contrary, in the case of Article 393(1) of the Commercial Act, if Article 209(2) of the Commercial Act applies to cases of internal restrictions, it is difficult to determine whether there was a resolution of the board of directors, regardless of whether Article 393(1) of the Commercial Act applies to transactions that are subject to resolution of the board of directors by internal regulations such as articles of incorporation. It is also helpful to simplify legal relations.

(3) The other party who has transacted with a manager or an apparent representative director is protected without gross negligence even if he/she was negligent (see Supreme Court Decisions 96Da36753, Aug. 26, 1997; 99Da19797, Nov. 12, 199). The representative director has a strong authority over a manager or an apparent representative director. Demanding negligence from the other party to the transaction solely on the ground that the resolution of the board of directors required under Article 393(1) of the Commercial Act was not passed, would result in less protection than the other party to the transaction with the true representative director or the apparent representative director, and thus, it is difficult to understand even from the perspective of equity.

(4) A resolution of the board of directors is merely an internal decision-making procedure of the company when the representative director conducts a transaction on behalf of the company. Trust of a third party, the counterparty to the transaction, is not different depending on the grounds that the resolution of the board of directors is required. Nevertheless, if it is viewed that the act falls under Article 393(1) of the Commercial Act or the degree of the duty of care that the transaction partner should pay depending on whether the transaction partner is an act falling under the mere internal restriction or an act falling under the internal restriction, the other party should grasp the internal situation of the company, and ultimately, it would result in an unreasonable consequence for the company to increase unnecessary transaction costs.

(5) Pursuant to Article 393(1) of the Commercial Act, cases where a resolution of the board of directors is required and where a resolution of the board of directors is required pursuant to internal regulations, such as the articles of incorporation, may be distinguished. However, the Supreme Court does not distinguish it, but has judged the validity of the transaction depending on whether the other party is acting in good faith or not. This is, regardless of how the representative director’s authority is limited in any way, in individual cases, the validity of the external transaction performed by the representative director is not treated as completely distinguishable from the internal restriction.

This is because it seems reasonable to judge in consideration of the good faith or negligence of the other party to the transaction.

(6) Determination of invalidity of a company’s resolution under Article 393(1) of the Commercial Act is a matter of determining how to reasonably distribute risks caused by a failure of a board of directors resolution between the company and its trading counterpart, and interested parties in external transaction. A resolution of the board of directors in a stock company is an internal procedure within the company. Unless there are special circumstances to suspect that a third party did not have a resolution of the board of directors of the company, it is not desirable to transfer the risks arising from the company’s internal transaction to the other party to the transaction with the representative director. In the meantime, there is reasonable reason to determine whether to distinguish the risks arising from the company’s internal transaction in violation of the internal restrictions and the transaction in violation of the statutory restrictions under Article 393(1) of the Commercial Act based on the same effect without distinguishing the transaction in violation of Article 393(1) of the Commercial Act. Therefore, even if the representative director performed the transaction without going through a resolution of the board of directors, it is reasonable to regulate the same as the case where the representative director’s internal restriction of the board of directors is limited.

E. Changes in precedents

Supreme Court Decisions 78Da389 Decided June 27, 1978; 33903Da42754 Decided April 11, 1995; 94Da42754 Decided January 26, 1996; 96Da48282 Decided June 13, 1997; 97Da35276 Decided July 24, 1998; 98Da2488 Decided October 8, 1999; 206Da36465 Decided July 26, 207; 206Da36475 Decided July 26, 2005; 206Da36475 Decided July 28, 2005; and 206Da3647465 Decided 265 Decided July 26, 207.

F. Facts

The reasoning of the lower judgment and the record reveal the following facts.

(1) The Plaintiff is a company that manufactures and sells electric machinery. The Defendant, as a company established by succession to the construction sector of the said company as a result of the authorization of the rehabilitation plan for the Daewoo Motor Sales Co., Ltd., for which the rehabilitation procedure is in progress, was completed on December 30, 201, and the rehabilitation procedure was completed on December 30, 201. The Yellow Land Co., Ltd., Ltd. (hereinafter referred to as the “Yhan Urban Land Co., Ltd.”) concluded an execution agency contract on behalf of the execution company with regard to the land rearrangement association in the Gwangju Yellow Land Partition Zone and the Gwangju Yellow Land Rearrangement Project (hereinafter referred to as the “instant project”).

(2) Around January 2012, the Defendant entered into an agreement with the Dag Construction Co., Ltd. on the instant project, and appointed Nonparty 1 as the president on February 3, 2012, and on March 27, 2012. Around March 2012, the Defendant decided to order the instant project that was promoted when Nonparty 1 works for the Dog Construction Co., Ltd., and entered into a joint construction agreement with the Dog Construction Co., Ltd. to recognize the nature of the said company as a certain share of the said company. On March 22, 2012, the Defendant entered into the agreement with the Dog Construction Co., Ltd. on the instant project with the Dog Construction Co., Ltd., Ltd., but, on behalf of the Defendant, the implementation of the instant project by proxy, the Defendant performed the instant project, and the Defendant entrusted the Defendant with the initial fund required for the Dog Construction Co., Ltd., Ltd., to raise funds for early operation.

(3) On the other hand, the Defendant’s representative director asked the Plaintiff to provide a loan to the Plaintiff for the initial project funds. The Defendant’s representative director asked the Plaintiff to provide a loan to the Plaintiff for the initial project funds.

On April 10, 2012, the Plaintiff agreed to lend KRW 3 billion to the Yellow Urban Parcel, which is intended to receive an order for the electrical construction, etc. of the instant project in the future, and on April 10, 2012, at the Defendant representative director’s office Nonparty 1’s office, Nonparty 1, the Plaintiff’s actual manager, Nonparty 2, and Nonparty 3, the actual manager of Yellow Urban Parcel, etc. were present, and entered into the loan agreement of this case as follows.

“The Plaintiff shall lend KRW 3 billion to the Yellow Urban District, and shall be paid KRW 6 billion plus KRW 3 billion in principal within 6 months. If the Plaintiff fails to pay it at the repayment date, it shall be transferred to the Plaintiff all business rights granted by the Land Partition Association in the Gwangju Yellow Urban District in KRW 3 billion.” And Nonparty 3 and Nonparty 4, the director, and the representative director, who are the actual operator of the Yellow Urban District in KRW 3 billion, jointly and severally guaranteed the obligation of Yellow Urban District in KRW 3 billion.

(4) On the same day, Nonparty 1 prepared, at the above office, a written confirmation in the name of the defendant (hereinafter referred to as the "written confirmation of this case"), stating that "if the terms and conditions of a loan for consumption of money between the two companies as above concluded on April 10, 2012 did not proceed, the principal of the loan shall be subrogated," and at the end of the written confirmation, Nonparty 1 entered the name of the defendant in the name of the defendant, the name and address of the defendant, the term "representative director", and Nonparty 1 entered the name in the name of the principal on the side of the word "representative director".

(5) According to the provisions of the Defendant’s board of directors at the time, the term “the act of introducing a large amount of funds and providing a guarantee” was set as the agenda of the board of directors. However, Nonparty 1 did not have a resolution of the Defendant’s board of directors at

(6) The Defendant’s assets in 2012 amounted to approximately KRW 170 billion for sales, and KRW 100 billion for sales. Determination as to the instant case

Examining these facts in light of the aforementioned legal principles, the following conclusion is derived.

(1) In light of the Defendant’s assets and sales size, the Plaintiff and the Defendant’s transaction relationship, and the details of the preparation of the confirmation document, the Defendant’s act of guaranteeing the Defendant’s obligation of KRW 3 billion by preparing the instant confirmation document constitutes a matter to be subject to a resolution of the board of directors pursuant to the

(2) There is no evidence to deem that the Plaintiff knew that the instant certificate was prepared without the resolution of the Defendant’s board of directors.

(3) In full view of the following circumstances, it cannot be deemed that there was gross negligence on the part of the Plaintiff, a third party, who was not aware of the fact that the instant certificate was prepared without the resolution of the

The Plaintiff, the actual operator of Nonparty 2, upon Nonparty 1’s request, concluded the loan agreement of this case that lent KRW 3 billion to the lot of yellow-ro city. If the Defendant did not guarantee the obligation of yellow-ro city, the Plaintiff would have not concluded the loan agreement of this case.

In light of the size of the Defendant Company and the degree of risk to be borne by the Defendant through the instant confirmation document, it is not apparent that the Defendant has to undergo a resolution of the board of directors in order to prepare the instant confirmation document to the effect that the Defendant guarantees the obligation of KRW 3 billion. It is in accord with the empirical rule to deem that the representative director of the Company was trusted to undergo internal procedures necessary for transaction. However, there is no special circumstance to suspect that the Plaintiff did not have a resolution of the board of directors regarding the preparation of the instant confirmation document in this case.

H. Appropriateness of the lower judgment

In the same purport, the original decision that the instant confirmation document is recognized as the Defendant’s expression of intent, not Nonparty 1’s expression of intent, and that even if Nonparty 1 prepared the instant confirmation document without the resolution of the board of directors, the Defendant shall perform the obligation pursuant to the instant confirmation document to the Plaintiff is correct. In so doing, the lower court did not err by misapprehending the legal doctrine on the interpretation of disposal documents and the validity of the expression of intent without

2. As the Plaintiff’s claim for the loan of the amount of the loan on the Yellow Urban Lots extinguished by payment in kind, whether it is impossible to file a claim under the instant confirmation with the Defendant (Ground of appeal No. 1), the lower court determined that the loan obligation cannot be extinguished by payment in kind even if the Yellow Urban Lots requested the Plaintiff to proceed with the procedure of transferring the right to execute the instant project, on the ground that the Yellow Urban Lots lost the right to execute the instant project, and that it is impossible to transfer the right to execute the instant project in lieu of the repayment of the loan obligation under the loan for consumption.

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower judgment did not err by misapprehending the legal doctrine regarding the interpretation of the disposal document, the possibility of payment by joint and several sureties, and the requirements for claiming payment by subrogation.

3. Whether the lower court omitted the judgment on the Defendant’s assertion of abuse of representative authority (ground of appeal No. 2) (the grounds of appeal No. 2), it is sufficient to indicate the judgment on the party’s assertion and other means of offence and defense to the extent that it can be recognized that the order is justifiable, and there is no need to determine all of the parties’ allegations or methods of offence and defense (Article 208 of the Civil Procedure Act). Even if there is no specific and direct judgment on the matters alleged by the parties in the judgment of a court, if it is possible to find out that the allegations have been cited or rejected in light of the overall purport of the judgment in light of the reasons for the judgment, the judgment cannot be deemed to be a revocation of judgment. Even if the part in which the judgment was not actually rendered but it is obvious that the assertion would be rejected, it is not necessary to reverse it on the grounds of the omission of judgment due to the lack of influence on the conclusion of the judgment (see Supreme Court Decisions 2011Da98426, Oct. 31, 2013

According to the record, the Defendant asserted that “the Plaintiff did not prepare the instant confirmation document on April 1, 2014 for the Defendant, but was fully aware or could have been aware of the fact that Nonparty 1 abused authority for the interest of himself/herself or a third party, and thus, the instant confirmation document has no validity.” On November 12, 2014, the lower court stated the said preparatory document on the date for the first pleading and asserted the abuse of power of representation.

While the lower court determined that the Defendant, as a guarantor under the instant confirmation letter, is obligated to pay the Plaintiff the principal amount of KRW 3 billion borrowed by Yellow-ro Urban Scil and its delay damages, it did not explicitly determine the Defendant’s assertion of abuse of power of representation.

However, in light of the overall purport of the reasoning of the lower judgment, the lower court may be deemed to have included the purport of rejecting the Defendant’s assertion, and even after examining the record, there is no sufficient evidence to acknowledge the Defendant’s assertion. In so doing, the lower court did not err by misapprehending the legal doctrine on abuse of power of representation or omitting judgment,

4. Conclusion

The Defendant’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices, except for a dissenting opinion by Justice Park Sang-ok, Justice Min You-sook, Justice Min You-sook, Justice Kim Yong-hwan, and Justice Noh Jeong-tae, and a concurrence with the

5. Dissenting Opinion by Justice Park Sang-ok, Justice Min You-sook, Justice Kim Yong-hwan, and Justice Noh Tae-ok

A. Summary of the Dissenting Opinion

In sum, the majority opinion argues that the representative director of a corporation without going through a resolution of the board of directors is to modify all the established precedents so far as the other party to the transaction did not have the duty of good faith when the transaction was conducted without going through the resolution of the board of directors and the other party to the transaction did not have the duty of good faith.

The Dissenting Opinion argues that Article 209 (2) of the Commercial Act is applied entirely on the premise that the "cases where the representative director of a stock company must pass a resolution of the board of directors" all constitutes a limitation on the representative director's power of representation.

Then, changing the criteria for protecting the other party to the transaction from the ‘faithless negligence without fault without fault without fault in good faith' is limited only to protecting the safety of transaction, and it is difficult to achieve concrete and reasonable validity in resolving individual cases as a result of 'all or no fault'. Until now, precedents focus on interpreting the scope of 'the negligence that is protected according to various real relations of the company under the principle to protect the other party to the transaction without fault without fault in good faith, while the other party to the transaction without protection is operating the system to compensate for damages against the company so as to ensure fair and reasonable division of damages through offsetting negligence. From this perspective, the ‘faith without fault' which has been adopted as the protection criteria so far does not only on the expression ‘non-faith without fault without fault without fault'. From this perspective, changing the precedent to the ‘non-faith without fault' of the other party to the transaction as stated in the majority opinion does not affect the conclusion of the precedents that do not change the meaning of 'no fault with fault without fault' of the other party to the transaction so far.

Under the Majority Opinion, Article 209(2) of the Commercial Act, which is premised on the Majority Opinion, is a provision concerning the representative member of a partnership company, and the scope of the provision applies mutatis mutandis to the representative director of a partnership company, and in particular, it is not applicable mutatis mutandis to the legal limitation on the representative director’s authority of representation that does not exist in a partnership company. Then, in cases falling under Article 393(1) of the Commercial Act, the grounds cited by the Majority Opinion for applying Article 209(2) of the Commercial Act are specifically contrary to the purport of the Commercial Act in order to apply Article 209(2) of the Commercial Act. Furthermore, in all cases where a representative director of a stock company performs a transaction without a resolution of the board of directors, excluding only the other party who is bad faith or bad faith, and uniformly protecting the

(b) Restrictions on delegation of authority to the board of directors to decision-making structure and representative director;

(1) A company is a corporation established for commercial activities or for other profit-making purposes, and has an independent legal capacity as a social entity, but it must be an institution to determine its intent as a social entity, execute its affairs, and express its decision-making intent externally. Among multiple kinds of companies stipulated in the Commercial Act, a company like an unlimited partnership company shall, in principle, have the right to manage affairs and the power of representation, and each member shall be appointed from among its employees even if a manager and a representative are appointed separately. Therefore, in line with an institutional qualification and employee qualification, it is unique that a company becomes an institution of a company other than a general meeting of shareholders comprised of investors and owners (see Supreme Court en banc Decision 2016Da251215, Mar. 23, 2017).

A corporation’s institution may be divided into a decision-making institution, an executing institution, and an auditor depending on its function. Of them, the decision-making function is divided into a decision-making function on the basic matters of a corporation, a decision-making function on important matters, a decision-making function on daily matters, and a decision-making function is divided into internal business performance function and external business performance function. Of the agencies of a corporation, the general meeting of shareholders is not delegated to another institution or a third party even in cases of matters resolved by the general meeting of shareholders prescribed in the Commercial Act, as necessary for shareholders to decide on the company’s intent on important matters concerning the basic organization and management of the corporation (see Supreme Court en banc Decision 2016Da25121

Since it is difficult to determine the necessary matters at the general meeting of shareholders because it is difficult to do so without being efficient to generate enormous transaction costs, most legislative cases on the stock company shall determine only the basic matters, and other important matters on the execution of business by the board of directors composed of several directors appointed at the general meeting of shareholders.

(2) Article 393(1) of the Commercial Act provides that “The business performance of a company shall be determined by a resolution of the board of directors, such as disposal and transfer of important assets, borrowing of large-scale assets, appointment or dismissal of managers, and establishment, relocation or abolition of branches.” It is comprehensively stipulated that “the business performance of a company” is only “the business performance of a company” under Article 393(1) of the former Commercial Act before amendment by Act No. 648, Jul. 24, 2001. It is not clear whether the board of directors merely provides for the matters concerning the powers of the board of directors, or not, among those of the board of directors, can not be delegated to the representative director, and it is difficult for the board of directors to determine the exclusive matters to be decided by the board of directors. This is also an amendment of Article 393(1) of the Commercial Act to the extent that the board of directors decides on the business performance of a company by way of specifying the scope of matters resolved by the board of directors, and thus, it does not necessarily mean that the board of directors should have been authorized to decide.

The resolution by the general meeting of shareholders under the Commercial Act shall not be delegated to other agencies or third parties (see, e.g., Supreme Court en banc Decision 2016Da251215, supra). In light of the characteristics of the corporate law that regulates organization relations and has a strong nature of law enforcement, it is limited to delegation of authority granted to a specific agency under the Commercial Act to other agencies.

(c) Decision-making of a stock company and relationship under Article 209 (2) of the Commercial Act;

(1) Article 209 of the Commercial Act concerning an unlimited partnership company provides that the representative member has the right to do all judicial or extra-judicial acts pertaining to the business of the company, and the restriction on its authority does not oppose a third party acting in good faith, and Article 389(3) of the Commercial Act provides that the above provision shall apply mutatis mutandis to the representative director of the company. Accordingly, where the representative director of the company performs transactions with a third party without the resolution of the board of directors, the interpretation of legal relations and the scope of application of Article 209 of

(2) As seen earlier, as a matter of principle, an unlimited partnership company should be appointed from among its members, even if each member has the right to manage affairs and the representative and the managing member are separately appointed, the company's institutional qualifications and employee qualifications coincide with each other. On the other hand, a stock company has a relationship between the decision-making function of the company and the management function of the company, such as the existence of an institution such as a general meeting of shareholders, a board of directors, and an auditor for each function. In particular, Article 393(1) of the Commercial Act provides that the board of directors shall pass a resolution on the important management of affairs of the company, and Article 393(2) of the Commercial Act provides that the board of directors shall supervise the performance of duties of the director, and at the same time, the board of

For this reason, academic circles have conflicting opinions that ① Article 209(2) of the Commercial Act shall apply mutatis mutandis to transactions conducted by the representative director without a resolution of the board of directors under Article 393(1) of the Commercial Act; ② the opinion that Article 209(2) of the Commercial Act shall apply mutatis mutandis to limited scope; ③ the opinion that Article 209 of the Commercial Act shall not apply mutatis mutandis to the representative director. ① The opinion that Article 209 of the Commercial Act shall apply mutatis mutandis to the representative director. ② The opinion that Article 389(3) of the Commercial Act shall apply mutatis mutandis to the cases where the representative director's power of representation is restricted, and Article 393(2) of the Commercial Act shall not apply mutatis mutandis to the cases where the representative director's power of representation is not applied mutatis mutandis to the representative director, which is beyond the limits of the language and text of Article 389(3) of the Commercial Act; ② the representative director's opinion that Article 209(2) of the Commercial Act shall not apply mutatis mutandis to the decision-making of the company.

이와 같은 주식회사의 이사회와 대표이사의 관계는 오늘날 대부분의 입법례가 취하고 있는 보편적 현상이다. 그리고 위에서 본 해석상의 견해 대립은, 근본적으로 주식회사는 합명회사와 달리 의사결정권과 업무집행권이 원칙적으로 분리되어 있음에도 이에, 관한 별도의 고려 없이 합명회사에서의 대표권 제한에 관한 상법 제209조를 주식회사의 대표이사에 준용한다는 규정만을 두고 있는 데에서 나온 것임은 더 말할 필요가 없다. 또한 신주발행이나 합병 등과 같이 상법에서 이사회나 주주총회의 결의를 요하록 하면서 그 결의가 흠결된 경우에는 소로써 해결하도록 규정하였다면 그에 따르면 되지만(상법 제429조, 제529조), 그러한 규정이 없는 주주총회나 이사회 결의가 흠결된 모든 경우의 효과를 개별적으로 고찰하지 않고 '대표권 제한'으로 뭉뚱그려 규율하거나 획일적으로 해석하려고 시도하는 데에서 비롯된 것이기도 하다.

In the interpretation of Article 209 of the Commercial Code, it should be approached on the basis of the large structure of the institution structure of the stock company, which is separated between the decision-making institution and the execution of business and the representative institution, and the representative director should also be in harmony between the conflict ideology of the "safety protection of the transaction" and the "protection of shareholders and creditors by securing financial soundness of the company" when judging the validity of the transaction in violation of these large principles.

(3) Unlike a limited partnership company, a legal relationship between an internal relationship and an external relationship, relatively simple and simple, is developed centering on capital, stocks, and various agencies as well as internal or external relationship. Unless the articles of incorporation stipulate the managing member as to the company’s obligations, the partnership company consists of the members who directly assume unlimited liability for the company’s obligations. Each partner represents the company and determine the person who represents the company with the consent of the articles of incorporation or all the members (Article 207 of the Commercial Act). Unless otherwise stipulated in the articles of incorporation, each partner has the right to manage the company (Article 200 of the Commercial Act). Therefore, in the case of a partnership company, the restriction on the managing member’s right to represent is expected to be limited by the articles of incorporation and Article 393 of the Commercial Act

On the other hand, a stock company, other than the representative director, has several institutions of a company prescribed in the Commercial Act, such as a general meeting of shareholders, directors, and board of directors, and Article 3 Section 3 of Part III of the Commercial Act provides for the contents of and methods for exercising each authority over agencies of a stock company. As seen earlier, in principle, each partner has the right to manage affairs of a company, but a stock company shall select the representative director by a resolution of the board of directors (main sentence of Article 389(1) of the Commercial Act). As such, the representative director of a stock company may be internally restricted by the articles of incorporation, regulations of the board of directors, etc., but the provisions of the Commercial Act may also be limited. In particular, Article 393(1) of the Commercial Act provides that the law limits the representative director’s power to make decisions on the management of affairs of a company to the board of directors. Considering structural differences between a stock company and an unlimited company, Article 209(2)3 of the Commercial Act applies mutatis mutandis to all cases where the representative director of an unlimited is to be applied mutatis mutandis by a resolution.

(4) Article 209 of the Commercial Act with respect to an unlimited partnership company may not apply mutatis mutandis entirely to a stock company. It is substantially revealed in the case of Article 374(1) of the Commercial Act, which provides that a stock company shall undergo a special resolution of the general meeting of shareholders when it performs an act, such as transfer

Article 374(1) of the Commercial Act is a mandatory law to protect the interests of shareholders by requiring a special resolution of the general meeting of shareholders to be obtained when a corporation enters into a contract which seriously affects the interests of its shareholders and reflects the intent of its shareholders (see, e.g., Supreme Court Decision 2017Da288757, Apr. 26, 2018). In a case where a company executes a matter requiring a resolution of the general meeting of shareholders without a resolution of the general meeting of shareholders by method of determining its collective intent under the Commercial Act without a resolution of the general meeting of shareholders, it is null and void and is not the other party to the transaction, which is the enforcement act, and is a dominant opinion of academic circles (see, e.g., Supreme Court Decision 91Da1148, Nov. 8, 191). This is because the intention of the company itself is defective. It is difficult to find interpretation that Article 209(2) of the Commercial Act should be applied in cases where a resolution of the general meeting of shareholders is defective.

(d) The effects of transactions by the representative director who lacks resolution of the board of directors under Article 393 (1) of the Commercial Act;

In light of the above legal principles, the key issue of this case, and the validity of the transaction without the resolution of the board of directors under Article 393(1) of the Commercial Act, shall be examined. The majority opinion, including this case, states that in all cases where the representative director acts without the resolution of the board of directors, a bona fide third party shall be protected pursuant to Article 209(2) of the Commercial Act, and the good faith should be interpreted as a "faith without fault" in good faith. However, in conclusion, Article 209(2) of the Commercial Act, which applies mutatis mutandis pursuant to Article 389(2) of the Commercial Act, cannot be applied to cases where the representative director's power of representation is restricted pursuant to Article 393(1) of the Commercial

(1) First, we examine the language and text of the relevant provisions.

The Commercial Act does not stipulate the validity of a representative director's act without a resolution of the board of directors required under Article 393 (1) of the Commercial Act. Therefore, the issue is whether such act is invalid or valid, and whether a director's liability for damages is deemed null and void under any condition, if considered null and void, or if so, whether it can be asserted null and void under any condition. Article 209 (2) of the Commercial Act provides that "Good Faith" is also a harmonious interpretation of the legal system. In accordance with the above provision, Article 209 (2) of the Commercial Act provides that "Good Faith," the issue is whether to protect only a third party without fault in good faith, and whether to protect the third party in good faith if so, it is a matter to be resolved by

Therefore, according to the language and text of Article 209(2) of the Commercial Act, only a third party in good faith and bad faith may be divided, but the above provision shall apply mutatis mutandis to the interpretation theory that limits the invalid conditions and the scope of a third party in bad faith, for example, where known or could have known, for example, the case where known or could have known," which is not in good faith, or where there is gross negligence for not known, it is possible to take a different view that the extent of protection is different by narrowly interpreting the above provision. Therefore, even if Article 209(2) of the Commercial Act is applied mutatis mutandis in a case where the resolution of the board of directors required under Article 393(1) of the Commercial Act is incomplete, even if the above provision does not apply mutatis mutandis, it is not concluded that the precedents so far are in violation

(2) As seen earlier, in light of the regulatory structure of the Commercial Act and the structural differences between the unlimited partnership company and the stock company under Article 209(2) of the Commercial Act, it is unreasonable to uniformly apply the said provision in all cases where the representative director’s power of representation is restricted.

(3) Under the above, the arguments cited in the Majority Opinion are specifically reflected.

(A) First, the majority opinion lists the circumstances cited in the precedents as factors to determine whether the transaction partner constitutes "the disposal and transfer of material assets, and borrowing of large-scale assets" under Article 393 (1) of the Commercial Act, and states that "it is not easy to understand and know the specific situation of the company, and it is not necessary to know and know such circumstances," or that "it is not easy to judge whether the transaction partner is an appropriate act to be in charge of the decision of the representative director even if he knows it." This is understood to the purport that the transaction partner should be in charge of protecting the transaction safety. However, as we agree with the majority opinion, Article 393 (1) of the Commercial Act applies uniformly to a person who does not know of the existence of the provision, the transaction partner cannot avoid the application of the above provision on the ground of legal site. In other words, the majority opinion does not consider "the ratio of the value of assets to total assets, the size of the company, the status of its business or management status, the purpose of its possession or use of assets, the purpose of the transaction partner and circumstances."

If a certain transaction constitutes "important business of a company, such as disposal and transfer of important assets, and borrowing of large-scale assets, to which Article 393 (1) of the Commercial Act applies, this is also an act of lending a large amount of funds or purchasing important assets from the standpoint of the other party. Therefore, the other party is expected to make a reasonable decision and make another transaction by exercising reasonable care. If the other party to the transaction with the former transaction experience, the difference between the previous transaction and the present transaction at issue in terms of the performance result, details and scale of the transaction, etc., and the unique nature of the transaction circumstance, etc. If the other party to the transaction with the stock company was to be confirmed at the time of the ordinary transaction, the transaction will be conducted in comparison with the amount of the company's capital stated in the certified copy of corporate register, namely, the purpose of its establishment, etc., and the amount of the company's capital stated in the certified copy of corporate register. So far, the judgment criteria required by the court shall be based on the empirical rule of the transaction.

However, Supreme Court Decision 2005Da3649 Decided July 28, 2005, etc. 2001, which was pointed out by the Majority Opinion, includes the Supreme Court Decision that did not distinguish the restriction on the power of representation under Article 393(1) of the Commercial Act from pure internal restriction, which was rendered after the amendment of the Commercial Act in 2001. The case is not understood in light of the fact that, in presenting the board of directors regulations in the stock company, the company actively dealt with the case where the resolution of the board of directors was unnecessary in the relevant transaction and the need to protect the other party’s trust is apparent.

Furthermore, the following precedents clearly indicate that the board of directors of a corporation has the power to make a decision on the management of the company's business, so that not only the disposal of important assets or the borrowing of large-scale assets, but also the business which is not generally and specifically delegated to the representative director, and which does not belong to ordinary business, must undergo a resolution of the board of directors (see, e.g., Supreme Court Decisions 2009Da55808, Jan. 14, 2010; 2009Da47791, Apr. 28, 201; 213684, Jul. 14, 2016; 2012Da75352, Dec. 22, 2017; 2012Da75369, Apr. 13, 2019).

(B) Next, the majority opinion argues that "in the case that the resolution of the board of directors is required under Article 393 (1) of the Commercial Act, the other party to the transaction without fault shall be protected in good faith, and in the case of internal restrictions that are subject to the resolution of the board of directors by the articles of incorporation, etc., the other party to the transaction without fault shall be protected" and criticizes this opinion. The dissenting opinion points out the legal problem of protecting the other party to the transaction with the representative director who did not go through the resolution of the board of directors, and points out the legal problem of protecting Article 209 (2) of the Commercial Act as a whole, based on the assertion that the majority opinion does not state a majority opinion, and it is reasonable to protect the other party to the transaction with the representative director who did not go through the resolution of the board of directors, and therefore, it is different from the theory of origin that is premised on the majority opinion that the change of precedents is unnecessary.

(C) The Majority Opinion, even if a manager or the other party who has transacted with an apparent representative director was negligent, is protected unless gross negligence is not gross negligence. Therefore, it would be against the perspective of equity to protect less protection by demanding only the other party who has transacted with a representative director with strong authority.

However, this does not comply with the Commercial Act regulations on managers or apparent representative directors. Apparent representative director is a system unrelated to the legal restrictions on the representative director's representative authority, which provides that Article 395 of the Commercial Act shall be held liable for the third party's act of representing a person who has no power of representation under certain conditions, and the requirements and legal effects are specified in the same Article. In addition, since it is required to be responsible for the formation of appearance of a company, there is a big difference in the requirements in the case of Article 393 (1) of the Commercial Act, which does not judge whether there is a cause attributable to the company if the representative director performed a transaction without the resolution of the board of directors.

Article 11 of the Commercial Act on the power of representation of a manager also provides that the manager shall have the power of representation and the restriction on the power of representation of the manager shall not be set up against a third party acting in good faith. Therefore, the protection of the other party who has transacted with the manager shall be according to the interpretation of the above legal provision. The restriction on the power of the manager under the above provision is only included in the "business", and there is no other provision that restricts the representative director's power of representation under Article 393 (1) of the Commercial Act. It is not reasonable to discuss not only the form of the provisions, but also whether the provisions are "serious negligence of the other party to the transaction" compared to the cases where the purpose of the system

(D) In addition, the majority opinion argues that the resolution of the board of directors is merely an internal decision-making procedure of the company, and the fact that the resolution of the board of directors did not go through the resolution of the board of directors is premised on the risk that occurred inside the company and, in principle, the other party to the transaction who trusted that it had gone through the resolution of the board of directors should be protected in principle. However, as seen earlier, in the case of a stock company, the "subject of decision-making" and the "subject of business execution" should be separated from the "subject of decision-making" in its essence, and as such, the issue in this case is derived. The fact that the resolution of the board of directors

(e) the settlement of specific feasibility issues and the settlement of interests between both parties;

(1) Since the establishment of the structure of a corporation centered on the general meeting of shareholders, the board of directors, and the representative director at the time of the enactment of the Commercial Act in 1962, Korea has maintained the structure of a corporation without fundamental changes.

Since the enactment of the Commercial Act, the economic situation changes after a long time after the enactment of the Commercial Act, and the structure of the institution needs to be re-established in line with the reality of the corporation in the modern era where the size of the corporation and the composition of the shareholder are diverse. Accordingly, the Commercial Act has provisions that simplify the procedures for convening a general meeting of shareholders and the resolution of the general meeting of shareholders (Article 363(4) of the Commercial Act), allowing only one or two directors to be appointed (Article 383(1) of the Commercial Act), and allowing not to appoint auditors (Article 409(4) of the Commercial Act). Accordingly, if the number of directors is less than three, some of the matters to be decided by the board of directors are stipulated as the matter of the resolution of the general meeting of shareholders, and some of them are stipulated as the representative director’s authority (Article 383(4) through (6) of the Commercial Act). This is almost few cases where directors are appointed for the purpose of small-scale trading, and the total amount of the company is less than one billion won, taking into account the reality of the company’s utility.

On the other hand, it is necessary to improve the audit system for compliance management while promoting the efficiency of decision-making in large-scale companies, especially listed companies, and to prevent unnecessary disputes by clarifying the division of authority among various companies. Therefore, in light of this point, there is a special provision on corporate governance of listed companies under Article 542-2 of the Commercial Code.

As such, even if "stock company" as stipulated in Chapter 4 of Part III (A) of the Commercial Act is a company, the perception that the type is diverse from a small-scale company to a small-scale company that is difficult to separate ownership and management in its substance and scale, and that the specific and individual regulations should be established by comprehensively taking into account various circumstances for each individual company and each individual transaction.

In the future, it is ideal that the system is designed to establish individual and explicit provisions concerning the composition of the corporation and the division of authority between the institutions through the amendment of the law. However, such shot and flexibility should be realized in the process of determining the fault of the parties in the trial procedure, etc. before the legislation is realized. The negligence of the parties is a critical concept, rather than a decent concept, "it is not a aggressive one," it is a normative area of judge in which the parties are judged by taking into account many indirect facts argued and proved by the parties at the individual trial site.

(2) We examine the flow of judicial precedents so far with such critical mind.

The Commercial Act has several provisions restricting the representative director’s right to represent when a stock company issues new shares (Article 416 of the Commercial Act). The Supreme Court has determined otherwise depending on the other party’s bad faith or negligence where a resolution of the board of directors as stipulated in Article 393(1) of the Commercial Act, the issues of this case, but held that the issuance of new shares is valid if a stock company issues new shares without a resolution of the board of directors as stipulated in Article 416 of the Commercial Act (see Supreme Court Decision 2005Da7060, Feb. 22, 2007; 2005Da77077, Feb. 7, 207). Even if a resolution of the general meeting of shareholders required under Article 374(1) of the Commercial Act was made, the Supreme Court has held that it is reasonable to uniformly limit the company’s liability to those who believe that the external act of the company is valid, and that it does not require any special resolution of the company’s existence of a different type of act from each other party’s legal act.

(3) We examine the actual state of discipline by the precedents so far as to the interpretation of Article 393(1) of the Commercial Act.

As already examined, the Supreme Court has widely protected the other party who has transacted with the representative director, instead of simply stating the purport of "the other party shall be protected only when he/she is in good faith," the burden of proof as to the other party's negligence is imposed on the company, and on the other party's trust as an ordinary rule, the Supreme Court held that the representative of the company trusted that the internal procedure of the company necessary for the transaction was completed, barring any special circumstances, and that the other party's bad faith or negligence should be proved by the company (see, e.g., Supreme Court Decision 2012Da73530, Jun. 26, 2014).

First of all, because it does not fall under the important matters stipulated in Article 393(1) of the Commercial Act, and thus, the representative director's right of representation is restricted due to internal restrictions such as "the rules of the board of directors". In cases where the power of representation is restricted internally, the bona fide object of the transaction party's good faith is ① the existence of internal regulations that require the resolution of the board of directors on the transaction in question, and ② the resolution of the board of directors was not passed accordingly. However, as the premise is based on ① and ② the existence of internal restrictions that require the resolution of the board of directors is essential, the contents of the restriction on the power of representation do not fall under absolute matters in the articles of incorporation (Article 289(1) of the Commercial Act). Therefore, there is a need to protect a third party who did not know of such circumstances. Accordingly, the attitude of the precedent can be understood to the effect that "if the internal regulations of the corporation, even if there are internal regulations, the procedure should be completed."

On the other hand, in the case of legal restriction under Article 393(1) of the Commercial Act, even if the other party did not know that the pertinent transaction requires a resolution of the board of directors under Article 393(1) of the Commercial Act, it cannot be asserted.

However, according to Article 391-3 of the Commercial Act, the minutes of the board of directors shall be prepared with respect to the proceedings of the board of directors (paragraph (1)), and the proceedings shall contain the proceedings, the summary of the proceedings, the result, the opposing parties, and the reason for opposing thereto, and the directors and auditors present at the meeting shall sign and seal or sign the minutes (paragraph (2)). In light of the purport of these provisions, in cases where the minutes of the board of directors have not been prepared with respect to the disposal of important assets which must undergo a resolution of the board of directors pursuant to Article 393(1) of the Commercial Act, it is necessary to be careful to recognize the existence of a resolution of the board of directors (see Supreme Court Decision 2012Da75352, Dec. 22, 2017; 2012Da75369 (Counterclaim)), if a transaction partner who traded without confirming whether the minutes of the board of directors had existed, the need to protect the other party’s trust would be restricted.

The Supreme Court has previously held that whether the disposal of important assets or the borrowing of large-scale assets under Article 393(1) of the Commercial Act constitutes the disposal of important assets or the borrowing of large-scale assets shall be determined depending on whether it is reasonable to entrust the decision of the representative director in light of the value of the assets and the ratio occupied by the total assets, the size of the company, the status of the company’s business or assets, management status, purpose and place of use of assets, the purpose of holding or borrowing assets, the company’s ordinary business relations, and the previous handling in the relevant company (see, e.g., Supreme Court Decisions 2005Da3649, Jul. 28, 2005; 2007Da23807, May

Specifically, the following are as follows: (1) The Debtor Rehabilitation and Bankruptcy Act shall apply

The application for commencement of rehabilitation procedures of a corporation shall not be included in the daily business affairs of the representative director.

Article 393(1) of the Commercial Act was deemed necessary to adopt a resolution of the board of directors (see, e.g., Supreme Court Decision 2019Da20463, Aug. 14, 2019); (2) In a case where a representative director of a corporation operating a building-sale business has concluded a contract including the details of disposal of unsold households, but has reached an agreement between the contractor and a corporation, the disposal of unsold households, which reach about 77% of the total construction quantity, unlike the agreement entered into in the contract, appears to require a resolution of the board of directors under Article 393(1) of the Commercial Act (see, e.g., Supreme Court Decision 2009Da47791, Apr. 28, 201); and (3) determination as to whether the sales contract of shares generated by put options constitutes an important matter of resolution of the board of directors under Article 393(1) of the Commercial Act (see, e.g., Supreme Court Decision 2016Da271364, etc.).

As can be seen, there exists a established precedent regarding whether the matter constitutes a matter subject to a resolution of the board of directors under Article 393(1) of the Commercial Act, and accordingly, a majority precedent is accumulated. As such, the interpretation theory under Article 393(1) of the Commercial Act is uncertain or the predictability of the other party is low, as noted in the Majority Opinion.

(4) In addition, it is pointed out that if a listed company needs a resolution of the board of directors pursuant to Article 393(1) of the Commercial Act, the other party to the transaction should be strengthened.

A listed company shall have outside directors, except as otherwise provided for by Presidential Decree, so a listed company shall send a notice of convening a board of directors and hold a meeting to make a resolution by the board of directors at least one week prior to the prescribed period of the Commercial Act, including outside directors. In the case of a trading partner who fails to verify the existence of meeting minutes of the board of directors in a transaction where the resolution of the board of directors is not carried out rapidly without sufficient time due to compliance with the procedure prescribed by the physical law, there

(5) Furthermore, in accordance with the precedents so far, even in cases where the transaction with the company becomes null and void due to the progress room of the other party, the transaction counterpart may seek damages against the company based on the employer liability under Article 756 of the Civil Act or the provisions on the liability for damages under Article 210 of the Commercial Act applied mutatis mutandis under Article 389(3) of the Commercial Act on the ground that the representative director performed the transaction without a resolution of the necessary board of directors pursuant to Article 393(1) of the Commercial Act. In such cases, the court may recognize the company’s liability and seek an equitable share of liability by offsetting negligence, taking into account the fault of the transaction partner (see, e.g., Supreme Court Decisions 200Da20670, Jan. 24, 2003; 2003Da6707, Feb. 25, 2005).

However, in cases of such employer liability or liability under Article 210 of the Commercial Act, it is established that the company that is an employer should be exempted from liability if the other party was gross negligence. The meaning of gross negligence is the same as the other party’s gross negligence as to the fact that the other party did not have any resolution of the board of directors as stated in the Majority Opinion, even though he/she knew that the act of an employee would not have been lawfully performed within his/her authority and authority. However, the other party merely violated his/her duty of care required by the general public by believing that it was an act within his/her authority and thus, lacks the same level of attention, and there is no need to protect the other party from the perspective of fairness (see, e.g., Supreme Court Decision 2011Da41529, Nov. 24, 2011).

In other words, as long as the other party to a transaction is not negligent in exercising due diligence, the Majority Opinion’s attitude to protect the other party to a transaction without fault in principle. In cases where only the other party with gross negligence is deemed null and void according to a majority opinion, it is difficult to recognize liability for damages recognized pursuant to Article 756 of the previous Civil Act or Article 210 of the Commercial Act with respect to the other party with gross negligence. As such, in most cases where the other party’s bad faith or gross negligence is not recognized with respect to the transaction with the company where the resolution of the board of directors was defective, the entire transaction should be deemed null and void in its entirety. It is doubtful whether such conclusion is reasonable from the perspective of corporate law, and it would be unreasonable for the other party to resolve the dispute in accordance with the principle of logic and experience of the other party to the transaction to view the transaction as invalid in light of the necessity of coordinating interests between the company and the interested party including the other party’s gross negligence, and the Majority Opinion’s logic that only the other party to the transaction would be able to resolve the other party’s breach of trust doctrine.

F. Compatibility with the legal principles on abuse of power of representation

Even if the representative director of a corporation abused his/her authority for the purpose of pursuing his/her own or a third party’s interest regardless of the company’s profit, such act is valid as a single act. However, if the other party to the act knew or could have known of the representative director’s intention, such act becomes null and void against the company, the established precedents regarding abuse of the representative director’s power (see, e.g., Supreme Court Decisions 97Da18059, Aug. 29, 197; 2005Da3649, Jul. 28, 2005). In other words, if the representative director abused his/her power of representation within the scope of the company’s right of representation, the other party to the transaction is limited to cases where the other party to the transaction abused his/her authority without fault. However, if the precedents on restriction of the representative director’s right of representation were modified, it is doubtful that the other party to the transaction violated the legal principles regarding the restriction of the representative director’s right of representation without fault or negligence, and it is not clear.

G. Review of the instant case

(1) Until the judgment of the court below, the examination was conducted on the premise that the act of preparing the confirmation document of this case was an internal restriction pursuant to the provisions of the board of directors of the defendant company. The meaning of the confirmation document of this case, like the judgment below, can be interpreted as a guarantee against the plaintiff, in accordance with the purport that "where the Yellow-ro Urban Scam is unable to pay the plaintiff the loan amounting to three billion won, the defendant bears the obligation." Nevertheless, even if the court below did not examine whether the act of preparing the confirmation document of this case constitutes an act corresponding to "loan of large-scale property" under Article 393 (1) of the Commercial Act, as long as it was revealed that there was a provision of the defendant's board of directors that the resolution of the board of directors was required for the act of guarantee, it seems that it did not dispute whether it constitutes an act under Article 393 (1) of the Commercial Act and

(2) There exists a lot of precedents that regard the act of guaranteeing or guaranteeing another person’s debt as an act constituting “loan of property” under Article 393(1) of the Commercial Act (see, e.g., Supreme Court Decisions 2012Da73530, Jun. 26, 2014; 2014Da206563, Aug. 20, 2014). In addition, whether the act of guaranteeing a debt is “large scale” or “large scale” should not be determined on the basis of the difference between the amount of guarantee and the amount of guarantee, the amount of the company’s business or property, the situation of the company’s business or property, the management status, the ordinary relationship of the company, and the previous handling of the company, etc., depending on whether it is reasonable to place the representative director’s decision.

Examining the record of this case in accordance with the above legal principles, there are many circumstances to deem that the Defendant, in order to guarantee the obligation of the YI, was required to pass a resolution of the board of directors of the Defendant, Nonparty 1 prepared the instant agreement without going through it, and that the Plaintiff knew or could have known of the fact.

Although it was true that the Defendant decided to order the instant project at around March 2012 at the Suwon Deliberation Committee, at that time, there was no internal decision-making by the Defendant with regard to the fact that at that time the Defendant guaranteed the obligation of the borrowed money of the Yellow Urban Schill or bears any monetary obligation. Rather, the Defendant had no legal obligation to guarantee the Defendant’s obligation of guaranteeing the obligation of the construction sector upon the division from the said company in accordance with the rehabilitation plan of the Daewoo Automobile Sales Company, and the Defendant had to guarantee the obligation of others on March 3, 2012, since it was at the time when the Defendant entered into a business agreement with respect to the instant project, YC Co., Ltd. was currently in charge of the business of raising funds. In addition, it is very exceptional to guaranteeing the obligation of others on March 3, 2012, since the Defendant had succeeded to the construction sector as at the time of the instant case.

The Plaintiff and the Defendant, as a company whose turnover in 2012 exceeds KRW 100 billion, deemed that there exists a form of contract conclusion that is expected at the time of an external transaction, are in accord with the empirical rule. In other words, the form of two documents is different, even though the instant confirmation document and the contract for loan for consumption was simultaneously prepared at the same place as the representative director’s office’s office, in which yellow-ro city oil was prepared by the Plaintiff. In other words, the loan contract for consumption appears to have been completed with the party’s seal affixed to his name and address, while the Defendant’s indication in this case appears to have been written to have been completed with the party’s seal affixed thereto, the Defendant’s personal seal affixed by Nonparty 1, the representative director who is not the Defendant’s corporate seal affixed to the Defendant, and on the same day, the loan for consumption was certified as a deed signed by a private person through his agent.

The vice president of the defendant, who was present at the time of the contract of this case, seems to have not been aware of the proviso clause referred to in the "performance by subrogation" among the contents of the letter of this case, and there is no evidence suggesting that the non-party 1 who prepared the letter of this case notified the defendant's other officers of this case or reported it to the board of directors, etc., and there is no evidence suggesting that the non-party 5, as well as the non-party 5, who was the other defendant's

(3) On the other hand, the lower court should re-examine whether Nonparty 1 knew or could have known that the resolution of the board of directors was not made by the Defendant for the preparation of the instant confirmation document. Therefore, the lower court erred by misapprehending the legal doctrine on the judgment of the party to the transaction where the representative director conducted a transaction without the resolution of the board of directors, and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. Therefore, the lower court should be reversed.

6. We express my concurrence with the Majority Opinion by Justice Kim Jae-hyung as to the several matters mentioned in the Dissenting Opinion.

A. The Dissenting Opinion argues that “the negligence without fault in good faith, which was considered as the basis of the previous precedents, is not a mere negligence without fault.” However, the previous precedents have judged the validity of the transaction without fault in good faith by repeatedly rendering a judgment that the transaction partner knew or could have known that there was no resolution of the board of directors for a period of not less than a hundred million years was valid. Even though the Supreme Court held that the transaction partner did not know that there was no resolution of the board of directors or did not know it due to gross negligence, the transaction is valid.” As such, the Dissenting Opinion pointed out that the part of “serious negligence” in light of the previous precedents as seen above is erroneous, and made it clear that the transaction partner should be excluded from the protection object without distinguishing the other party from the past and the latter (see, e.g., Supreme Court Decision 93Da1391, Jun. 25, 1993). Since the past precedents generally refer to the progress, “the negligence without fault in the previous precedents” cannot be interpreted as a gross negligence even if the other party has expired.

The law must be clear. In the legislation, even though it is possible to use indefinite or abstract expressions, such concepts or expressions should be used only in inevitable circumstances, and the meaning and contents of the law should not be changed according to the individual preference or direction of the judge. Such clarity doctrine is required by all Acts as an expression in the principle of a rule of law, and applies likewise to cases where the law is interpreted and declared by interpreting the law. The Supreme Court has to ensure predictability and legal stability for the people who are the parties of the law by declaring a clear legal doctrine as to the interpretation and application of the law. As stated in the Dissenting Opinion, if the act of good faith is not a simple good faith without fault, it would be confused as to what is simple and simple without fault, and how to distinguish between the act of good faith and without fault without fault.

B. According to the Dissenting Opinion, not only disposal of important assets of a corporation or borrowing of large-scale assets, but also Supreme Court precedents that the board of directors does not delegate to the representative director general and specific business affairs, which require resolution of the board of directors pursuant to Article 393(1) of the Commercial Act, are repeated so that the legal principle is clearly distinguishable from cases where a resolution of the board of directors is necessary and where it is not so.

However, examining the specific cases cited by the Dissenting Opinion, the issue of whether the pertinent transaction constitutes a business under Article 393(1) of the Commercial Act, without any assertion and certification as to the existence of the internal regulations that are stipulated by the resolution of the board of directors regarding the pertinent transaction (see, e.g., Supreme Court Decision 2014Da213684, Jul. 14, 2016). If there is no proof to prove the existence of internal regulations, such as the articles of incorporation, in individual cases, the issue is whether the resolution of the board of directors should be made pursuant to Article 393(1) of the Commercial Act, and ultimately, it is natural that the legal restriction matter will lead to the issue.

In fact, an internal provision regarding the pertinent transaction by the board of directors is applicable to a matter that requires the resolution of the board of directors. As seen in the Majority Opinion, the execution of an internal business by the board of directors without delegation to the representative director generally and specifically falls under the legal limitation that requires the resolution of the board of directors regardless of whether the matters are stipulated in the articles of incorporation or the regulations of the board of directors. Therefore, even if an internal provision exists, there are co-existence between the pure internal restriction and the statutory limitation under Article 393(1) of the Commercial Act. However, insofar as the existing precedents do not distinguish between the internal restriction and the statutory restriction under Article 393(1) of the Commercial Act, it is unreasonable for the board of directors to examine whether the internal business of the board of directors constitutes an internal business without fault, and thus, it is unreasonable for the board of directors to adopt a resolution of the board of directors to ensure that there is no more efficient operation of the board of directors without fault between the other party to the transaction, and thus, it is also difficult for the court below to determine that there is an internal regulation of the foregoing.

Therefore, in a case where the representative director neglected to undergo a resolution of the board of directors due to the failure to properly operate the board of directors, it is desirable from the perspective of strengthening the power of the board of directors or normalizing the role of the board of directors to compensate the representative director for the loss of the company, rather than protecting the company by transferring the risk to the other party to the transaction. In this case, it is desirable that the board of directors should make the decision-making officer perform the original function as an institution supervising the business performance of the representative director.

D. The Majority Opinion, in light of the language and text of Article 209(2) of the Commercial Act, which provides that “in a case where a resolution of the board of directors was not made in good faith, the criteria for good faith and without fault should be deemed reasonable rather than the bad faith and without fault that had been taken by the previous precedents. Furthermore, it can be distinguished from a case where a resolution of the board of directors is required under Article 393(1) of the Commercial Act and a pure internal restriction is a matter of internal restriction, but the precedents were uniformly modified in respect of the reason why the previous precedents were judged without distinction, while respecting it. By doing so, the Majority Opinion is to resolve

The Chief Justice of the Supreme Court

Justices Park Sang-ok

Justices Lee Dong-won

Justices Kim Jae-sik in charge

Justices Park Il-san

Justices Noh Jeong-chul

Justices Min Min-young

Justices Kim Gin-soo

Justices Lee Jae-hwan

Justices Noh Jeong-hee

Justices Kim In-bok

Justices Noh Tae-ok

Justices Heung-gu