이사회의 결의사항과 상대방의 주의의무 -대상판결 : 대법원 2009. 3. 26. 선고 2006다47677 판결 -

Abstract

The effect of representative act by representative director without the resolution of board of directors may depend upon whether the other party was in good faith or bad faith for it. When the other party deals in good faith for the representative act without the resolution of board of directors, the transaction has effect, whereas when he(or she) does in bad faith, the transaction has no effect. In the case above plaintiff agreed to accept the duty of share purchase for the affiliated company(defendant) and made a contract with it that it would refund the cost of the share purchase. This contract, however, was made without the resolution of board of directors in defendant. The plaintiff who had performed its duty to purchase the shares requested defendant to refund it, but it denied to do it because the resolution on the contract has not been made. The supreme court found that the other party may have trust in that the representative director go through the due process in the company for the transaction if it were not special circumstances and the plaintiff had no duty to confirm the resolution and so there was no negligence in plaintiff. The decision of this case is rational and appropriate in that the court took the interests between two parties seriously and decided whether the existence of duty to confirm the resolution, instead of taking the way of the court below considering the scale of contract, the scale of plaintiff company, the practice of aids between the affiliates companies, the scale of defendant and the details of entering into the contract.