가해법인 및 피해법인에 공통된 사실상 대표자의 불법행위로 인한 법인의 손해배상책임 인정여부

Whether the legal entity is recognized as liable for damages due to the illegal acts of its de facto representative common to the offending entity and the damaged entity

This paper is an analysis of the Korean Supreme Court's decision 2020Da9268, pronounced on June 1, 2023. This is a case in which Mr. G, who was in a de facto representative position for both the defendant (offending) entity and the plaintiff (damaged) entity, embezzled money not only from the defendant entity but also from the plaintiff entity through unfair means. The plaintiff entity, which claimed to have suffered damage as part of the money embezzled from the plaintiff entity flowed into the defendant entity, filed a claim against the defendant entity for the return of money based on unjust enrichment or compensation for damages due to tort. Regarding this case, the first and second trials and the Supreme Court differ in their approach to the matter and their resulting conclusions. The first and second trials acknowledged that the entity's tort liability was established based on the representative's illegal acts, but in calculating damages, they denied or limited the amount of damages to 50%. In contrast, the Supreme Court denied liability for damages on the grounds that even if it recognized Mr. G's illegal act, there was no clear basis for recognizing it as an illegal act by the offending entity. Regarding this, the author criticized that the 'de facto representative' principle, the 'limits of the appearance theory' principle, and the 'attribution of recognition' principle, which were formed in the existing precedents of the Supreme Court in relation to the liability of corporations for illegal acts, were rarely or not used in this judgment. To summarize the author's solution, Mr. G can be evaluated as the de facto representative of the offending entity, and his illegal acts, such as embezzlement of school funds, not only constitute his own illegal acts, but can be judged as business-related acts of the (de facto) representative who ostensibly represents the offending entity. However, since Mr. A is in the position of de facto representative of the damaged entity, what he recognizes also belongs to the damaged entity. Since he would have recognized on his own that his illegal act was not related to the duties of the offending entity, his awareness is attributed to that of the damaged entity as well. Therefore, the damaged entity cannot claim compensation from the offending entity.