2016년 상법 관련 대법원 주요 판례 연구

This article is to review three decisions of the Supreme Court in 2016 in relation to the Commercial Act. The first case is about the limit of the voting right, under the provision of Article 409 (2) of the Commercial Act, which provides “No shareholder who holds more than three percent of the total issued and outstanding shares, exclusive of non-voting shares, shall exercise his/her voting rights in respect of such excess shares beyond the above limit, in the appointment of auditors.” It means that in computations with respect to resolutions by a general meeting of shareholders, the number of votes which cannot be exercised pursuant to Articles 409 (2) shall be excluded from the number of votes of the shareholders present at the meeting under Article 371 (2). If these Articles are strictly applied in the appointment of auditors, some problems come up. The second case is related to Article 42 (1), providing “if a transferee of a business continues to use the trade name of the transferor, he/she shall also be liable for repayment of the obligations of a third party arising out of the business of the transferor.” The main problem of the case is the applicable possibility of this article to lease of business. Finally, the last case is related to abuse of power of a representative director. It is a well known rule that a representative director shall act for the company’s interests. Nevertheless, if the representative director abuses his/her power in order to seek his/her own or the third parties’ interests instead of the company’s interests, the result of his/her representative action is void when the trade opponent knows his/her motive to gain his/her or the third parties’ interests. There are some academic discussion in order to explain this proposition. The Supreme Court noted reasonable ideas to resolve above problems in these cases, and this article examines their meanings.