주식회사의 이사의 책임에 관한 판례의 법리

Korean Commercial Code ("KCC") imposes on directors of the corporation the duty of care and the duty of loyalty (KCC §382 & §382-3). There are arguments whether these clauses impose directors same fiduciary responsibilities as Anglo-American legal system, Korean Supreme Court does not render decision on this issue. In the Anglo-American legal system, the duty of care sets a standard of conduct while the business judgment rule limits judicial inquiry into business decisions and protects directors who are negligent in the decision making process. The notion of Business Judgment Rule ("BJR") is that directors must be able to make business decisions without fear of a lawsuit because shareholders want directors to make decisions and to take risks to produce gain even though mistakes may lose money. The idea of a court second guessing business decisions and then creating liability for directors could make directors overly cautious, resulting in reduced shareholder value. With development of Korea's economy, we should set firm legal standard of directors' responsibility in order to protect directors from unnecessary lawsuit and to make way for creative management of corporation. We also should set legal standard of directors' responsibility in the M&A situation of the corporation, especially hostile M&A situation and LBO.