대표권 제한 위반에 관한 연구 — 대법원 2021. 2. 18. 선고 2015다45451 전원합의체 판결 —

초록

A juristic person including a corporation has a unified channel for performing juristic acts and factual acts only through its representative(a director of juristic persons or a corporate president), and the representative has uniform comprehensive authority to perform all juristic acts and factual acts, both in and out of court. Therefore, in the case of a non-profit corporation, even if the representative authority is internally restricted, it cannot be enforced against its promisee unless it is registered (the Korean Civil Code Article 60). In the case of a for-profit corporation under the Korean Commercial Code, the restriction on representative authority cannot be enforced against bona fide third parties (the Korean Commercial Code Articles 209 and 389(3)). In the past, in the case of a stock company, the company could invalidate a president’s act that violated the restriction on representative authority by asserting and proving that the other party acted in bad faith or with negligence. However, in a recent Supreme Court plenary session decision (Supreme Court Decision of February 18, 2021, Case No. 2015da45451), the Supreme Court ruled that a corporation could only invalidate such acts if it could prove that the other party acted in bad faith or with gross negligence, thereby excluding ordinary negligence as a ground for invalidation. Under the ruling, even if a resolution by the board of directors is required by law or the articles of incorporation, the president’s arbitrary act without such a resolution can only be invalidated if the company can claim and prove that the other party acted with bad faith or gross negligence. Such a ruling strengthens the company's burden of proof and argumentation, thereby protecting the other party to the agreement more effectively. This encourages the company to make greater efforts to reduce transaction costs, as the company is the entity that can minimize transaction costs such as agency costs and moral hazard. However, completely omitting gross negligence and using only bad faith as the grounds for invalidation between the parties to the agreement is difficult to accept, as it could undermine the original purpose of civil law, which is to establish legal relationships based on the true intentions of the promisor, by allowing the parties to the agreement, who possess various information and evidence collected during the transaction process, to easily utilize such information and evidence. In this regard, the approach of the target judgment, which seeks to protect the interests of both the promisor and the promisee fairly by adopting bad faith or gross negligence as the grounds for invalidity, is appropriate. Even though it is a matter requiring resolution by the shareholders' meeting under the law, the president’s arbitrary act without the resolution of the shareholders' meeting is considered absolutely invalid from the perspective of violating the validity provisions, regardless of the good faith or bad faith of the other party. However, in cases where it has become a matter requiring resolution by the shareholders' meeting under the articles of incorporation or other internal regulations, there are no cases. because such cases have not been litigated. However, considering that most shareholder meeting agenda items are submitted by the board of directors, it is reasonable to apply the ruling of the target case as is. Furthermore, regarding the abuse of representative authority, the ruling(the company may invalidate such acts by asserting and proving the bad faith or negligence of the other party) are still maintained as they are. But, the target ruling should be applied to the abuse of representative authority as well, such that the company can invalidate the representative acts of a president who has abused their authority only when it can assert and prove the other party's bad faith or gross negligence. In this regard, it is necessary to closely monitor any further changes in Supreme Court rulings in the future.

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