表見代表理事에 관한 判例硏究

Abstract

The section 395 of the Korean Commercial Code deals with the issue of so-called the apparent representing director. It stipulates that, if in the process of making a contract a director uses such a title as might induce a party to believe that the former has the authority to represent a company, and if the latter acts in good faith, the company shall be responsible for the contract concluded, even though the former has no such an authority. It is said by refence to the Korean corporate law that a fair balance between the protection of a party s reasonable reliance upon the other party s misleading action and the enforcement of the true legal relationship of those parties should be struck. Though it is quite difficult to achieve this challeging goal, the section 395 should be also interpreted and applied in this way. Nevertheless, the dominant position is to interpret and apply the section 395 too favourably for the party who asserts his reliance upon arguably misleading titles such as president, vice-president, senior executive director, or excecutive director. However, it can be argued that the justification under which the section 395 was introduced in the Korean Commercial Law is not sustainable any longer, inter alia, in that nowadays even an ordinary person is not readily entitled to beliving that a director who acts in the name of president, vice-president, senior executive director, or excecutive director necessarily or probably has the authority to represent a company. Therefore, the requirement of good faith in the section 395 needs to be interpreted and applied more strictly against a party who claims his reliance upon the above titles. This argument is supported by the recent decision of the Supreme Court, which is worth welcome.