대표이사가 이사회 결의 없이 제3자와 거래행위를 한 경우 상대방의 보호범위

Abstract

The gist of the subject case pertains to the scope of protection that should be afforded to a counterparty of a transaction, a third party with whom a representing director of a stock company made transactions in violation of a requirement that the representing director of a stock company shall effect any transaction pursuant to a resolution adopted by the board of directors. The previous Supreme Court precedents have provided protection for a good faith, non-liable third person counterparty by stating that “transactions shall be valid unless the counterparty knew or could have known that no resolution was adopted by the board of directors”, without distinguishing the cases where a resolution of the board of directors is required pursuant to Article 393(1) of the Commercial Act (statutory restriction) from the cases where a resolution of the board of director is required in accordance with the internal regulations such as the company’s articles of incorporation (internal restriction). However, these precedents have largely been subject to criticism that (1) such precedents are similar with a Japanese precedent that applied mutatis mutandis a civil law provision on declaration of untrue intention, but lack rational grounds therefor; (2) they are inconsistent with the legal doctrine of protection of the counterparty who committed ordinary negligence, or culpa levis, in other cases of transactions involving, for example, apparent representative directors; and (3) these precedents treat equally statutory restriction and internal restriction although they should be distinguished. In the subject case, the Supreme Court proclaimed a legal doctrine that “a third person acting in good faith” shall be protected according to Article 209(2) of the Commercial Act, which stipulated that both cases in violation of statutory restriction and internal restriction under Article 393(1) of the Commercial Act shall be applied mutatis mutandis to cases concerning a representing director of a stock company under Article 389(3) of the Commercial Act, except that a person with gross negligence is considered as a person acting in bad faith and thus is excluded from protection. While the rationale of the argument that Article 209(2) of the Commercial Act should be adhered to when it comes to internal restriction was not much opposed, the problem of whether the application of Article 209(2) of the Commercial Act was appropriate even in a case where no resolution was adopted by the board of directors in violation of Article 393(1) of the Commercial Act, or whether such case should be treated differently from the cases involving internal restriction, was fiercely debated. The Majority Opinion in the subject case did not contest that the cases involving statutory restriction and the cases involving internal restriction in violation of Article 393(1) of the Commercial Act were logically distinguished from each other, yet it maintained that both cases should be treated equally and subject to the application of Article 209(2) of the Commercial Act on the grounds that the approach to the interpretation of Article 393(1) of the Commercial Act remained unclear and that differential treatment of the two is expected to entail many realistic difficulties. In response, four Justices dissented with the Majority Opinion, reasoning that it is inappropriate to apply Article 209(2) of the Commercial Act to statutory restriction in violation of Article 393(1) of the Commercial Act, and, therefore, that there is no need for overturning the precedents, as existing precedent is superior in terms of concrete reasonableness and adjustment of mutual interests. The subject case (a) proclaimed a new legal doctrine that, in a case where a representing director of a stock company acted without a resolution adopted by the board of directors, the court ought to protect “a third person in good faith” pursuant to Article 209(2) that applies mutatis mutandis in accordance with Article 389(3) of the Commercial Act and consider a person with gross negligence as acting in bad faith; and (b) specifically defined the meaning of gross negligence and enumerated the elements to consider in determining gross negligence in an effort to provide an instruction for the determination thereof. The subject case is particularly meaningful in that it is consistent with the course of the Supreme Court precedents that considered a person with gross negligence as a person acting in bad faith in the cases of transactions involving apparent representative directors and the cases of self-dealing transactions between directors and companies in violation of Article 398 of the Commercial Act, and protected a person with ordinary negligence. Furthermore, as demonstrated in the Majority Opinion, Dissenting Opinion, and Concurring Opinion in the subject case, affluent discussions and various criticisms have been raised with regard to basic principles of company laws, including: (i) the purport and meaning of Article 393(1) of the Commercial Act that stipulated the powers of the board of directors; (ii) the relationship between the board of directors and the representing director in a stock company; (iii) the structure of the Commercial Act provisions where the provision on an unlimited partnership company is applied mutatis mutandis to a stock company. With such discussions and criticisms as a kickoff, more advanced discourse on company laws is expected to follow.