이사의 회사에 대한 손해배상책임

This article comments the Korean Supreme Court Decision 2003다69638. The decision handels the director's liability to indemnify its corporation for the loss incurred(hereinafter referred to as 'the director's liability'), which is provided in §399 of the Korean Commercial Code(hereinafter referred to as 'the Code'). In Chapter 1 all the relevant facts found and affirmed by the court are described. The holding is briefly interpreted in Chapter 2. In Chapter 3 the liability requirements, the core of this article, are scrutinized based on the interpretational theories of the §399. Above all, three critical interpretational problems are here examined : (1)What is the meaning of the director's negligence of his mission ? To determine it is the director's breach of duty of care sufficient? (2)What is the legal meaning and range of 'law and regulation' in §399 of the Code? (3)Who takes the burden of proof of the director's breach of the duty of care? For the deepened analysis not only comparative legal approach but also historical approach are applied to theses three issues. So-called one-tier approach and two-tier approach prevailing in Japan are also introduced. The author criticizes, as conclusions, (1)that the decision too widely interprets the meaning of 'law and regulation' and (2) that it comes too easily to its conclusion without mentioning anything about the prerequisite : the corporation should take the burden of proof of both the director's subjective breach of the duty of care and his objective negligence behavior.