Whether the auditor's liability for tort against the company with the consent of the total shareholder may be exempted pursuant to Articles 415 and 400 of the Commercial Code (negative)

In accordance with Articles 415 and 400 of the Commercial Act, the auditor’s liability for liability to the company, which may be exempted with the consent of all shareholders, is not a tort due to delegation. Thus, even if the de facto one shareholder expresses his intention of exemption from liability, the auditor’s liability for liability to the company cannot be exempted.

Articles 399, 400, and 415 of the Commercial Act; Article 750 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Song Mutual Savings and Finance Company (Attorney Song Jae-hun, Counsel for the defendant-appellant)

Defendant (Attorney Kim Jae-won, Counsel for defendant-appellant)

Seoul High Court Decision 94Na41364 delivered on November 1, 1995

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

In accordance with Articles 415 and 400 of the Commercial Act, the auditor's liability to the company, which may be exempted with the consent of all shareholders, is not a tort due to delegation. Thus, even if the shareholder is de facto one, the auditor's liability to the company shall not be exempted (see Supreme Court Decision 87Nu760 delivered on January 31, 1989).

Therefore, the judgment of the court below to the same purport is just. However, since the defendant asserted to the effect that the non-party, a de facto shareholder who controls the plaintiff company, expressed his/her intent of exemption, it is unnecessary to conclude that there is no evidence to deem that the plaintiff company exempted the liability for damages and that such declaration reached the defendant during the time of the original judgment, but it does not affect its conclusion

Therefore, under the premise that the Nonparty may be exempted from the Defendant’s tort liability against the Plaintiff Company, the Nonparty expressed his/her intent of exemption, and even if his/her declaration of intention was delivered, the lower court did not exhaust all necessary deliberations or exercise its right of explanation, and there is no reason to further examine whether it was erroneous.

Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-soo (Presiding Justice)