2018년 상법총칙·상행위법 주요 판례의 검토

Abstract

Among those rulings rendered by the Korean Supreme Court in 2018, this paper focuses on commercial transaction cases based upon the Korean Commercial Code. This paper covers five cases. The main issues of the above five rulings are as follows. ① In 2013Da26425 (Feb. 12, 2018) the court ruled that when a trust company signs a special money intrust with an investor, the trust company must fulfill a duty of explanation as means of investor protection. If the trust company does not fulfill this duty of explanation, it will be liable for damages based on tort, not on default. In the case of liability for damages based on tort law, rather than on the basis of default. In the case of liability for damages based on tort law, the statutory interest rate in commercial activities is not applicable. This judgement reaffirmed the Supreme Court’s previous ruling. ② In 2016Da39897 (Apr. 12, 2018) the court ruled that an agricultural partnership and the members thereof are jointly and severally liable to the agricultural partnership’s bondholders. It is a meaningful ruling which declared the legal relations between agricultural partnership and the members thereof. ③ Furthermore, even if a defendant is the representative director of a company, the defendant is not a merchant. The position as the representative director of the company and the position of the individual are separate. In 2017Da205127 (Apr. 24, 2018) the court ruled that when a representative director borrows money as an individual person, civil extinctive prescription is applied. This supports the protection of those who lent money to the defendant director. ④ Article 64 of the Korean Commercial Code provides that except as otherwise provided for in the code, the statute of limitations for a claim arising out of a commercial activity shall expire if it is not exercised within five years. Article 64 also applies to forms of commercial bonds. However, when restitution of unjust enrichment is sought, unlike in the instant case, the court must make a determination based on whether the transaction is necessarily urgent. In the case of 2017Da248803․2017Da248810 (Jun. 15, 2018), urgency of the transaction was held to be required, so the conclusion which determined that the 5 years expiration applies, was appropriate. However, in the future, the Supreme Court needs to present its criteria upon which the decision, as to whether promptness of the transaction is required, can be made. ⑤ In 2017Da246739 (Aug. 1, 2018) the court ruled that when a dispute regarding Personal Law arises, the governing law should be determined based on Article 16 of the Private International Law. In the ruling, the Korean Civil Code was judged to be the governing law. As a result, the members of an agricultural partnership are jointly and severally liable for the agricultural partnership’s debt according to article 57 of the Korean Commercial Code.