(a) Where a person who holds concurrent office as the representative director of a separate company is joint and several sureties for another company's obligations on behalf of the other company;

B. Whether the above joint and several liability act constitutes a director's own trade act under Article 398 of the Commercial Code

Whether or not (affirmative)

(b) Requirements for a company to claim the invalidation of such joint and several sureties against a third party who is the opposite contractual party;

A. Transactions under Article 398 of the Commercial Act include not only acts of conflicting the interests of direct establishment between a director and a company, but also acts of benefiting a director and acts of putting a disadvantage to the company as a joint and several surety between a director and a third party who is a creditor of his own personal debt on behalf of the company, such as acts of putting a joint and several surety for his own personal debt between a director and a third party who is a creditor of his own personal debt. Thus, even in cases where a person who concurrently serves two representative directors of a separate company acts on behalf of the other company for

B. Where a separate representative director and a separate representative director concurrently stand joint and several suretiess on behalf of another company for the obligations of one of the two companies, the company must prove that the third party to the transaction knew that the third party to the transaction did not obtain approval of the board of directors as necessary to ensure the safety of the transaction and protect the third party acting in good faith, in order to assert that the transaction was null and void because it did not obtain approval of the board of directors.

(b)Article 398 of the Commercial Code;

Supreme Court Decision 65Da734 delivered on June 22, 1965, 69Da1374 delivered on November 11, 1969, Supreme Court Decision 73Da955 delivered on January 15, 1974

Attorney Lee Jae-chul et al., Counsel for the defendant-appellant

Seoul High Court Decision 200Na1440 delivered on August 1, 200

Seoul High Court Decision 83Na3582 delivered on June 26, 1984

The judgment below is reversed, and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The court below acknowledged the fact that the plaintiff lent 215,00,000 won to the Co-Defendant of the first instance court on June 8, 1982 (hereinafter the above company) as set on July 8 of the same year at the maturity of payment and that the non-party, who was the representative director of the defendant company, on behalf of the defendant company, guaranteed the above company's obligation to return the above loans on behalf of the non-party. Thus, the court below was just in examining the facts in light of the records of the cooking process of the evidence produced in recognizing the above facts, and there is no violation

2. At the time of the above joint and several sureties by the defendant company, the non-party was concurrently a representative director of the defendant company and the above company, so the above non-party did not obtain approval from the board of directors of the defendant company in accordance with Article 398 of the Commercial Act in providing the above guarantee on behalf of the defendant company, and thus the approval of the board of directors of the defendant company was not granted at the time of the defendant company's act of joint and several sureties by the defendant company was null and void. Therefore, even though the above non-party was concurrently a representative director of the above company, the above non-party's act of joint and several sureties as the representative director of the defendant company

However, transactions under Article 398 of the Commercial Act include not only acts of dualizing interest directly established between a director and a company, but also acts of benefiting private individuals, such as joint and several surety between a director and a third party who is a creditor of his own personal debt on behalf of the company, and acts of putting disadvantages to the company. In this sense, in a case where the non-party, who is a representative director of the two companies at the time of the purchase, concurrently provided joint and several surety on behalf of the defendant company with respect to the above company's obligations, the provisions of Article 398 of the Commercial Act shall also be applicable. (See Supreme Court Decisions 65Da734 delivered on June 22, 1965, 69Da1374 delivered on November 2, 196). However, the non-party, who is a representative director of the board of directors, did not obtain approval from the board of directors for the above company on behalf of the plaintiff and the non-party who is a representative director of the board of directors, and without such approval, the non-party's act should be proved to be justified.

3. Therefore, the lower judgment is reversed, and the case is remanded to the Seoul High Court, which is the lower court, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Kang Jin-young (Presiding Justice)