代表理事의 代表權濫用에 대한 相對方의 認識에 관한 小考 - 대법원 판례의 유형별 분석을 중심으로 -

Abstract

“Abuse of representative authority” means that the CEO ‘objectively’ performed a legitimate act that went through the necessary procedures of the Commercial Law without exceeding the limit of the representative authority within the scope of the representative authority, and ‘subjectively’ performed an act as a representative for the economic interests of himself or a third party without attribution of the transactional profit to the company. Regarding the degree of recognition of the counterparty as a requirement for abuse of representative authority, the Supreme Court ruled that the counterparty's bad faith was necessary in the position of “the theory of abuse of a right in a narrow sense” in the judgment sentenced in 1987. However, the position was changed to “the theory of unintentional expression” and it was relatively consistently judged that the counterparty's good faith or bad faith was necessary after the judgment sentenced in 1988. And in the case of the judgment sentenced in 1990, both theories were presented and judged as arguments for the perception of the counterparty. By the way, the ruling that was recently sentenced in 2016 again took the position of “the theory of abuse of a right in a narrow sense”. However, the lower courts of the judgments sentenced in 1987 and 2016 adopted “the theory of abuse of a right in a broader sense” that required the counterparty in bad faith or gross negligence. Both theories lead to the same conclusion in terms of not being protected when the counterparty has a bad faith regarding the fact about the abuse of representative authority, but when the counterparty in good faith has negligence, the scope of the protection is different. In other words, when the counterparty in good faith is without negligence, the same conclusion is reached, but when the counterparty is in excess of negligence or gross negligence, the effect of the transaction due to the abuse of the representative authority will be different according to the theory. In this way, because the Supreme Court and the lower courts have not clearly presented the grounds for the judicial effect of abuse of representation, but rather mixed opinions, the problems of contradiction or conflict of judgment may arise. In this paper, the accumulated precedents of the Supreme Court are classified by type in relation to the degree of the counterparty’s perception to invalidate the effect of the abuse of representative authority. After that, by comparing and analyzing the nature and content, and differences of each theory, we examined what position is valid as a reasoning that reflects the purpose of the system pursued by the abuse of representative authority. In conclusion, the Supreme Court needs to present a clear and reasonable standard regarding the degree of the counterparty’s perception to invalidate the transaction due to the establishment of the abuse of representative authority, and “the theory of unintentional expression” is valid for such a standard.