이사회 결의를 흠결한 거래에 있어 제3자 보호 - 대법원 2014. 8. 20. 선고 2014다206563 판결을 중심으로 -

Abstract

When the Representative Director of a corporation executes transactions without appropriate board resolution when such board resolution is required by statute or by its articles/bylaws, the corporation or its shareholders and/or creditors have legitimate interest to rectify such misbehavior – that is, to nullify such transactions. Meanwhile, the counterparties to such transactions would suffer losses upon the nullification of such transactions. In order to protect counterparties transacting with corporations, the Korean courts have held the transactions lacking relevant board resolution valid unless the counterparty were aware of such lack of board resolution or the counterparty would have known the lack of such board resolution. Furthermore, a recent Korean Supreme Court decision (2014Da206563) held that the corporation cannot nullify a transaction lacking board resolution when there is a bona fide third party. The reasoning of the decision is rational but the scope of a bona fide third paty is not clear or controversial. In this case (2014Da206563) the court recognized the receiver of a bankrupt corporation as a boda fide third party, which means such transactions lacking board resolution could never be nullified once the corporation filed bankruptcy.