대표이사의 대표권의 내부적 제한 위반거래 및 대표권남용과 제3자 보호요건

This article comments on a few Korean Supreme Court decisions with respect to two issues; (1)the protection requirement of the third party who transacted with the representative director who violated internal restrictions on his authority by making the transaction without obtaining an authorizing resolution of the board of directors, and (2)the protection requirement of the third party who transacted with the representative director who abused his authority by making the transaction actually for the benefit of himself or someone other than his corporation. Concerning the first issue, the Korean Supreme Court in 94Da42754 and 2005Da3649 required "good faith without any negligence" on the part of the transacting third party. However, this comment suggests a better solution (i,e., "good faith without gross negligence") by pointing out a few serious problems (e.g., not being in harmony with the underlying policy objectives of the Korean Commercial Code provisions on the issue in consideration, not being in balance with those court decisions and scholarly opinions dealing with the issue in the context of a general manager or a director's self-dealing) arising from the Korean Supreme Court decisions. Regarding the second issue, the Korean Supreme Court in 93Da13391 required also "good faith without any negligence" on the part of the transacting third party. However, this comment suggests the same "better solution" as that mentioned above in the first issue part, demonstrating a few reasons. These reasons include, but not limited to, that the solution suggested in this comment better serves the underlying policy objectives of the Korean Commercial Code provisions related to the second issue and that the solution suggested in this comment harmonizes with the protection requirement of the third party in other cases such as a director's self-dealing and an apparent representative director's abuse of authority.