주식회사 이사 선임의 하자와 거래상대방 보호 - 상업등기제도를 중심으로 -

When the shareholders’ resolution to elect directors (including representative director) are cancelled or invalidated by a court order, shareholders would wish to cancel or invalidate the transactions authorized or executed by such persons. Meanwhile, the counterparties to such transactions would suffer losses upon the nullification if such transactions. Korean Commercial Code solves these conflicts as follows: (i) shareholders’ interest will be preserved as the transactions would be nullified retroactively (Article 190); (ii) bona fide counterparties’ reliance will be protected through the effectiveness of commercial registry (Article 39) and other schemes to protect reliance. However, counterparties may not be adequately protected as Korean courts hold the corporation liable under Article 39 only when the corporation is responsible for recording in its commercial registry the persons not duly elected as directors. This paper discusses the court decisions and suggests a more appropriate application of Article 39.