이사회 결의가 필요한 전단적 대표행위의 상대방 보호 법리의 재검토 -대법원 2021. 2. 18. 선고 2015다45451 전원합의체 판결의 분석을 겸하여-

In a case, where a representative director sold an important corporate asset without boardʼs approval, then the transaction is to be valid depending on the situation. A particularly intriguing problem arises regarding what the situation is. This issue has long been dealt with by the Supreme Court of Korea(ʻʻSCKʼʼ). Since 1978, the SCK had held that the transaction to be valid as against the counter-party unless the corporation can prove that the counter-party knew or had reason to know of the absence of the boardʼs approval(SCK, 78Da389; 94Da903 etc.). In February 18, 2021, the SCK made a new ruling that transaction to be valid as against the counter-party unless the corporation can prove that the counter-party knew or didʼt know gross-negligently the absence of the boardʼs approval(2015Da45451). According to the new case law, the transaction is to be valid, even when the counter-party did not know the absence of the boardʼs approval negligently. The purpose of this article is to examine the new case law and the theory on the protection of the counter-party raised by representative directorsʼ arbitrary transactions without the board of directorsʼ approval. Part Ⅱ first starts with the new case law focusing on the facts and reasoning of majorityʼs opinion. Part Ⅲ deals with the theory and precedent Korean case law in comparison with the Japanese corporate law and German corporate law. Part Ⅳ analyzes logic of the new case law and its implication for Korean corporate law and corporate governance.