理事에 대한 補償制度 導入의 妥當性 考察

Indemnification provides financial protection by the corporation for its directors against exposure to expenses and liabilities that may be incurred by them in connection with legal proceedings based on an alleged breach of duty in their service to or on behalf of the corporation in United States. The objective of this study is to explore whether an adopting of indemnification needs in Korea by examining the systems of liability and indemnification for directors in use in United States. And this article bases on the provisions of the Model Business Corporation Act indemnification statute. Indemnification encourages capable individuals to serve as directors who are afraid of the risks and costs of litigation and innocent directors to resist unjust charges. And also it discourages groundless shareholder litigation. If permitted too broadly, however, indemnification may violate equally basic tenets of public policy. Indemnification is permitted only where it will further sound corporate policies and prohibited from protecting or encouraging wrongful or improper conduct. So the scope of indemnification provided by the law is limited. In effect, it would be difficult to justify indemnifying a director who has not met any of the standards of liability. Moreover, permissible indemnification is authorized as a matter of discretion, not as a matter of right. I am of opinion that if there are instances that a director bears a excessive financial burden of any ensuing litigation, it would be a problem originated from the range of liability, not indemnification. Also indemnification has the possibility of disregard for the purpose of liability legislation. An indiscreet adoption of indemnification without statutory basis will be causing a confusion of the existing provisions defining the liabilities of directors after all.