대표권 남용과 배임죄에 관한 입법적 검토 - 대법원 2017. 7. 20. 선고 2014도 1104 전원합의체 판결을 중심으로 -

Abstract

Prior to the announcement of the per curiam decision on abusing power of representation and breach of trust, it was difficult to understand the Supreme Court’s clear stance on whether or not the abuse of representative power for issuing promissory notes constitutes a breach of trust. It was due to the fact that there were two types of Supreme Court decisions, where the relevant facts were fairly similar but there was a great difference in their conclusions regarding whether breach of trust can be established. Since the per curiam decision solvs the issue of great discrepancies in the decisions regarding whether breach of trust can be established, we think the decision is valid in terms of legal stability. The majority opinion considers breach of trust a risk of harm, while the dissenting opinion considers it an injury, so there is a difference in when breach of trust was established. According to the majority opinion, when a person has to bear the legal responsibility because of special circumstances, such as when promissory notes are invalidly issued but the promissory notes are nevertheless actually distributed to a third party, the person has completed breach of trust regardless of whether or not his liabilities are fulfilled. On the contrary, according to the dissenting opinion, breach of trust is established when the company actually fulfills its obligations on the promissory notes or its tort liability, regardless of whether the act of issuance is legally effective or whether the promissory notes are distributed to a third party. Both the majority opinion and the dissenting opinion present reasonable arguments, and this paper explores the basis of the opinions and benefits of the debate. According to the per curiam decision, when the opposite party, who obtains promissory notes from a representative director that abuses his power, is aware or is able to know the true intentions of the representative director, it is nullified against the company, and therefore obligations to pay the promissory may be called into account if the opposite party is not at fault. However, according to the per curiam decision, since rules on personal defense are applied to the third party who obtains promissory notes from the opposite party, he can be protected if there was gross negligence or ill intent but no malicious intent. The question then arises as to if it is reasonable that the opposite party with gross negligence is not allowed to inquire into the obligations to pay the promissory notes when the representative director abuses his power, but the third party with gross negligence or ill intent is allowed to inquire into the obligations to pay the promissory notes. If the relevant facts are similar, it is reasonable to standardize the protection requirements for the person that is holding the promissory notes, because the outcomes of a litigation, without a particular reason, need to be identical regardless of which legal provisions the person who has the claim uses to exercise his rights. Since it is not necessary to protect a person who does not fulfill his duty of care, a sensible interpretation is that the debtor is not responsible for the promissory notes if gross negligence is with the person who has acquired the promissory notes. In this paper, based on the results of our research, we propose an amendment to the protection requirements for the person who holds the promissory notes.