배임적 대표행위로 인해 기간을 준수하지 못한 법인에 대한 구제방안 - 대법원 2016. 10. 13. 선고 2014다12348 판결에 대한 평석을 중심으로 -
Remedies for Corporations that Fail to Comply with the Invariable Period Due to the Act of Arbitrary Representation - Focusing on the Verdict Supreme Court 2016. 10. 13. Sentencing 2014da12348 -
송방아(이화여자대학교)
27권 3호, 35~88쪽
초록
Supreme Court 2016. 10. 13. Judgment No. 2014Da12348 held that if a representative of a company has caused damage to a corporation by engaging in arbitrary litigation without receiving special rights, if the other party knew or could have known of such circumstances, the starting point for a request for reconsideration proceeds from the time when other executives who have the authority to rightfully preserve the interests of the corporation, know the grounds for quasi-reconsideration. This appears to be the result of the adoption of the jurisprudence of ‘abuse of representation’ in the matter of ‘attribution of perception’ - Like Supreme Court 1998. 11. 10. Sentence 98Da34126 the judgment. However, since the “acceptance of a claim” is a litigation act in which the court is the recipient, it is difficult to adopt the jurisprudence of abuse of representation that consists of adjusting the legal relations between private individuals by inferring the proviso to Article 107(1) of the Civil Code. In addition, the judgment in 98Da34126 differs from each other in that the starting point of the statute of limitations corresponding to the cause of appeal was in question, whereas this case was the case in which the starting point of the retrial period corresponding to the litigation requirement was at issue. Furthermore, since the issue of determining the perception of a corporation is normative, it can be argued that it is appropriate for the corporation itself to bear the risk caused by the act of betrayal of the representative to whom the corporation has delegated authority by granting trust. It should be considered that at the time when the representative of the servant who committed the act of betrayal became aware of the cause of reexamination, the remedy for the servant shall be made through the pursuit of an invariable period or through the right of reexamination provided for in Article 451, paragraph 1, paragraph 5 of the Code of Civil Procedure.
Abstract
Supreme Court 2016. 10. 13. Judgment No. 2014Da12348 held that if a representative of a company has caused damage to a corporation by engaging in arbitrary litigation without receiving special rights, if the other party knew or could have known of such circumstances, the starting point for a request for reconsideration proceeds from the time when other executives who have the authority to rightfully preserve the interests of the corporation, know the grounds for quasi-reconsideration. This appears to be the result of the adoption of the jurisprudence of ‘abuse of representation’ in the matter of ‘attribution of perception’ - Like Supreme Court 1998. 11. 10. Sentence 98Da34126 the judgment. However, since the “acceptance of a claim” is a litigation act in which the court is the recipient, it is difficult to adopt the jurisprudence of abuse of representation that consists of adjusting the legal relations between private individuals by inferring the proviso to Article 107(1) of the Civil Code. In addition, the judgment in 98Da34126 differs from each other in that the starting point of the statute of limitations corresponding to the cause of appeal was in question, whereas this case was the case in which the starting point of the retrial period corresponding to the litigation requirement was at issue. Furthermore, since the issue of determining the perception of a corporation is normative, it can be argued that it is appropriate for the corporation itself to bear the risk caused by the act of betrayal of the representative to whom the corporation has delegated authority by granting trust. It should be considered that at the time when the representative of the servant who committed the act of betrayal became aware of the cause of reexamination, the remedy for the servant shall be made through the pursuit of an invariable period or through the right of reexamination provided for in Article 451, paragraph 1, paragraph 5 of the Code of Civil Procedure.
- 발행기관:
- 한국민사소송법학회
- 분류:
- 법학