2015Da206904 Action claiming restitution of unjust enrichment

1. Korea Deposit Insurance Corporation which is a bankrupt corporation A;

2. The Bankruptcy Trustee B of the Bankrupt Corporation;

C

Busan District Court Decision 2014Na40166 Decided February 5, 2015

July 23, 2015

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Busan District Court Panel Division.

The grounds of appeal are examined.

1. The so-called nominal director, who has the legal status of director, but does not perform substantive duties as director under the explicit or implied agreement with the company, is also a corporate corporate body, which provides the foundation necessary to establish and act as a social entity, as well as bears the responsibility for the violation of its obligations under the Commercial Act. Thus, separate from judicial control over excessive remuneration, the company shall have the right to claim remuneration for the company by a resolution of the articles of incorporation or the general meeting of shareholders pursuant to Article 388 of the Commercial Act, even if there is no difference with the general director. Furthermore, in the form of payment of remuneration, a director was appointed as a director as a means to pay the company's funds to individuals, barring any special circumstance such as the agreement on remuneration for a nominal director is contrary to good morals and other social order, and thus, cannot be said

2. In full view of the evidence, the court below found that Gap established or acquired a special-purpose corporation in the form of shareholders or executive officers in order to avoid the restriction of the Mutual Savings Banks Act, and directly conducted real estate development projects by making large loans to such special-purpose corporations, and D Co., Ltd. (hereinafter referred to as "D") was one of the special-purpose corporations established or acquired for this purpose, and the defendant was appointed as D directors and completed registration, and was paid KRW 1 million through KRW 1,500,000 per month from D, but did not carry out the actual duties as D directors, and determined that the mandatory's right to claim remuneration arises only from delegated affairs, and in light of the purport of the company system, the fee agreement with the director who did not carry out his duties is null and void because it is contrary to good morals and other social order. Accordingly, the defendant did not have the right to claim remuneration to the defendant who did not actually carry out his duties as a director, and therefore, the defendant paid remuneration from D shall be returned to D without any legal cause.

3. However, in light of the aforementioned legal principles, if the so-called nominal director, such as the defendant, satisfies the requirements of Article 388 of the Commercial Act, he/she shall have a right to claim remuneration against the company, barring any special circumstances. The court below denied the defendant's right to claim remuneration against D for the reasons indicated in its holding. In so doing, the court below erred by misapprehending the legal principles on the right to claim remuneration of the nominal director, which affected the conclusion of the judgment.

4. Therefore, without examining the remaining grounds of appeal, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young

Justices Park Young-young

Justices Kim In-bok, Counsel for defendant

Justices Kim Jong-il