대출결정시 금융기관 이사의 주의의무와 경영판단의 원칙 -대상판결 : 대법원 2006.11.9. 선고 2004다41651, 41668 판결-

The case I try to describe is about the directors' duty of care in banking organ. The Supreme Court of Korea found in this case(Decision 2004Da41651, 41668 Delivered on December 9, 2006) that 1. we cannot decide that directors and auditors of banking organ have breached their duty of care and loyalty only because the loan they made got to bad and 2. they shall not discharge their duties as being in excess of the discretion permitted to directors when they as an ordinary rational directors or officers didn't make a loan in good faith, with proper information and according to the adequate proceedings for the best corporate interest or when there was obvious irrationality in decision-making and its contents and 3. in order to decide whether or not the decision about loan made by the directors of banking organ was within the discretion permitted to them or they didn't perform his duties, we shall consider whether ordinary director in charge of loan affair shall disobey laws or bylaws and we shall think about the conditions of loan, the amount of loan, repayment plan, security existence and its content, debtor's asset and management situation, possibility of prosperity overall and 4. when director violates law, the act itself becomes default with corporation and he shall have the responsibility of the losses resulted from the act and the business judgement rule shall not apply to that violation. The Supreme Court found that every loans was made within the loan limit of Youngnam Investment Bank, secured or guaranteed and the Bank had possibility to be prosperous in the future, and that there was no special irrational of directors to give a business judgement on loan decision. I have different point of view in evaluating the issued loans of directors, however. In deciding whether to make loan or not, defendants did not exercise diligent care. The Supreme Court put much emphasis on the index which represent the possibilities of growth, but overlooked relatively poor endeavors of directors to get security or collect credits. I think three loans among 21 were made without diligent and prudent care in deciding. These surely were made from gross negligence of directors. The Supreme Court use the words of business judgement in deciding the breach of duty of care. We can't conclude whether the Supreme Court receive the concept of business judgement rule of American law. However the way of reasoning of the Supreme Court is similar to the rule and is properly supposed to be affected by the rule. If the Supreme Court accept the rule, it might be conflict with the Commercial Law because the Commercial Law rules on the ordinary negligence of director, while business judgement rule is mostly based on gross negligence. The problem of how the rule be adapted in accordance with the Commercial Law should be explicitly solved soon.