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(영문) 서울서부지방법원 2016.10.20 2016나787
약정금
Text

1. All appeals by the Plaintiff and Defendant C Co., Ltd are dismissed.

2. The appeal cost arises between the Plaintiff and the Defendant B.

Reasons

1. The reasoning of the court’s explanation concerning this case is as stated in the reasoning of the judgment of the first instance except for the following additional determinations. Thus, it is acceptable to accept this as it is by the main text of Article 420 of the Civil Procedure Act.

2. The Plaintiff asserts that Defendant B should compensate the Plaintiff for damages arising therefrom pursuant to Articles 401-2(1)3 and 401(1) of the Commercial Act, inasmuch as Defendant B, as an executive instruction under Article 401-2(1)3 of the Commercial Act, either intentionally or by gross negligence, caused the Defendant Company to sell D’s operating rights to G around the beginning of August 2014, and caused the Plaintiff to suspend the Plaintiff’s activities as D’s professional personnel.

Article 401 of the Commercial Code provides that if directors have neglected to perform their duties wilfully or by gross negligence, they shall be jointly and severally liable for damages to a third party. However, the directors, upon delegation by the company, merely performed the duty of due care as a good manager to the company as a trustee to the company, and thereby caused damages in breach of such duty in relation to a third party.

Even if the act of a corporation in an important position in economy and society is not naturally liable for damages, but if the act of a corporation in an important position in the economy and society has inflicted damage on a third party due to the director's bad faith or gross negligence to protect the third party in violation of the above duty, due to the director's bad faith or gross negligence, the director shall be liable for damages to the third party which has a proximate causal relation with the act of neglect

(See Supreme Court Decision 84Meu2490, Nov. 12, 1985). As to the instant case, the Defendant Company was at the beginning of August 2014 while the Defendant Company substantially operated the Defendant Company.

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