상법 제542조의9 제1항을 위반한 신용공여행위의 효력에 관한 연구 - 대법원 2021. 4. 29. 선고 2017다261943 판결 -

In the Commercial Act Article 542-9 (1) provides for the prohibition of credit granting to major shareholders of listed companies. Furthermore, it sought to ensure the effectiveness of the credit prohibition (Article 624-2, Article 634-3), by setting Criminal Punishment for when it is violated. Laws have not been established on how the private effect of the act would be viewed if major shareholders, etc. violated prohibition of credit granting rules. However, the Supreme Court's ruling on the distribution of dividends sentenced on 29 April 2021 established an important law relating to the effectiveness of the violation of the prohibition of credit granting. In this case, the Supreme Court made four important decisions regarding the effectiveness of the act of violating the Prohibition of credit granting. First of all, if you look at the legislative purposes and content of Article 542-9 (1) of the Act, and the fact that criminal punishment is made for violations, credit granting made in violation of the provisions above is unacceptable and it is invalid, as it constitutes a mandatory provision. In addition, the act of credit granting is prohibited with or without the approval of the board of directors, so it cannot be valid even with the approval of the board of directors' approval. Anyone can claim the nullification of such a breach of the prohibition of credit granting. However, even if a credit granting violates Article 542-9 (1) of the Commercial Act, a third party cannot claim invalidity unless there is a gross negligence in which a third party does not know about it and does not know it. In this paper, the meaning of the Supreme Court's ruling on the judicial effectiveness of the violation of the prohibition of credit granting, along with the facts of the case and the progress of the lawsuit, was reviewed by issue.