협동조합기본법상 임원의 민사책임확장규정에 대한 검토

Abstract

There are some differences in the provisions regarding extension of civil liabilities of director between Framework Act on Cooperatives and Agricultural Cooperative Act (and other Cooperative Acts and Commercial Law, etc). The paper reviews the differences and their legal meanings. Futhermore, the paper points out that ‘the stipulation extending the Director’s Civil Liabilities in the Framework Act on Cooperatives has several unconstitutional and legally controversial points. Specifically, the article that stipulates that “the director who didn’t express the opposition in a definite manner during the board of directors should be regarded as a director who voted yes on the agenda, and consequently the director should take on the legal joint liabilities for the damages.” has several unconstitutional points, according to the general constitutional theories (like Principle of Proportionality (Principle of Excess Prohibition; Prinzip des Übermaßverbot) and the Principle of Civil Liabilities) that have been established by many legal scholars and judicial precedents. The paper proposes that Framework Act on Cooperatives should be revised through resolving the inconsistency and the unconstituionality issues. More specifically, the article that stipulates that “the director who didn’t express the opposition in a definite manner during the board of directors should be regarded as a director who voted yes on the agenda” must be revised into the article that stipulates that “the director who was recorded not to raise the issue during the board of directors in the Board of Directors Meeting Minutes should be presumed as a director who voted yes on the agenda” in order to give the director the opportunity to overthrow the legal effect of taking on the legal joint liabilities for the damages by presenting counterevidence during trial.