In a case where another joint tortfeasor who has obtained joint exemption from liability for damages caused by a tort by the representative director of a corporation, exercises the right of indemnity against one of the joint representative directors, the scope of the right of indemnity that the joint representative director should comply (=total share of the corporation's liability), and at this time whether the joint representative director may oppose the right of indemnity on the ground of the internal share ratio between the joint representative director and the joint representative director or between

Where a representative director of a stock company causes damage to another person by intention or negligence in the course of performing his duties, the stock company shall be liable for damages to a third party pursuant to Articles 389(3) and 210 of the Commercial Act, and the representative director shall also be liable for joint tort with a stock company pursuant to Article 750 of the Civil Act or Articles 389(3) and 210 of the Commercial Act. In addition, where one of the joint tort other than a stock company and representative director has paid his/her share of or more than the joint tort liability and exercises his/her right to indemnity after he/she has paid his/her share of or more than the joint tort liability, the stock company and representative director shall be assessed as one of the joint owners in relation to the right to indemnity, and the same shall apply to cases where the above representative director is a joint representative director. Accordingly, where another joint representative director who has been granted joint immunity exercises his/her right to indemnity against a person among the joint representative directors, such joint representative director shall comply with the indemnity against the entire share originally borne by the stock company.

Articles 389(3) and 210 of the Commercial Act; Article 750 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Lee Jong-soo and 1 other, Counsel for plaintiff-appellant)

Seoul Special Metropolitan City (Law Firm Han-ro, Attorneys Ansan-won, Counsel for defendant-appellant)

Defendant (Attorney Kim Han-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2005Na22925 delivered on August 12, 2005

The part of the lower judgment against the Plaintiff is reversed, and that part of the case is remanded to the Seoul High Court. The Defendant’s appeal is dismissed.

The grounds of appeal are examined.

1. Plaintiff’s ground of appeal

Where the representative director of a stock company causes damage to another person by intention or negligence in the course of performing his duties, the stock company shall be liable for damages to a third person pursuant to Articles 389(3) and 210 of the Commercial Act. The representative director shall also be liable for joint tort with the stock company pursuant to Article 750 of the Civil Act or Articles 389(3) and 210 of the Commercial Act (see Supreme Court Decisions 79Da1230, Jan. 15, 1980; 200Da48272, Mar. 11, 2003, etc.). In cases where one of the joint tort other than the stock company and the representative director has paid his/her share or more and exercises his/her right to indemnity after having the third person obtain joint immunity, that stock company and the representative director shall be assessed as one of the joint tort with respect to the right to indemnity and shall be liable for the whole amount of each joint tort. The same applies in cases where the above representative director is a joint representative director.

Therefore, if another joint tortfeasor who has obtained joint immunity exercises the right to indemnity against one of the joint representative directors, the joint representative director should comply with the indemnity against the entire portion of the liability that the corporation originally bears, and it cannot be set up against the claimant on the ground of the internal share ratio between the joint representative director and the joint representative director or between each joint representative director.

However, according to the reasoning of the judgment below, the court below found that the non-party 1 corporation (hereinafter "non-party 1 corporation") violated the duty of due care and good faith as a joint representative director and caused damage to the non-party 3 et al. who violated the duty of supervision and supervision over the non-party 1's employees as a joint representative director. According to this, the defendant and non-party 2 are liable for joint tort pursuant to Article 750 of the Civil Code. (However, the court below rejected the plaintiff's assertion that the defendant and non-party 2 are liable for damages under Articles 389 (3) and 210 of the Commercial Code. However, as long as the defendant and non-party 2 are liable for damages under Article 750 of the Civil Code, this error did not affect the conclusion of the judgment, and it did not err in the misapprehension of legal principles as to the remaining amount of liability between the non-party 1 corporation and the joint representative director.

2. As to the Defendant’s ground of appeal

As examined in the part of the judgment on the plaintiff's grounds of appeal, inasmuch as the defendant, a joint representative director of the non-party 1 company, bears the obligation of indemnity against the plaintiff as joint tortfeasor of the non-party 1 company pursuant to Article 750 of the Civil Act or Articles 389 (3) and 210 of the Commercial Act, the decision of the court below that the defendant bears the obligation of indemnity against the plaintiff is reasonable pursuant to Article 401 (1) of the Commercial Act does not affect the conclusion of the judgment. Thus, the argument in the grounds of appeal that the claim in this case did not meet the requirements of Article 401 (1)

3. Conclusion

Therefore, the part of the judgment below against the plaintiff is reversed, and that part of the case is remanded to the court below, and the defendant's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Kim Hwang-sik (Presiding Justice)