대법원 판례상 경영판단의 원칙에 관한 소고

Since late 1990s, the Korean Supreme Court has applied the business judgment rule to cases of which the issue is whether directors breached their duty of care. Korean version of the business judgment rule is mainly designated to avoid putting ex post facto liability upon directors. The primary purpose of the rule is to prevent directors from taking risk-adverse attitudes to corporate decisions in order to stimulate entrepreneurial innovation. The rule functions as a criterion for directors good performance of the duty of care. Also, it permits directors to enjoy a wide range of discretionary power in making business decisions. However, they should make business judgments on an informed basis. The rule appeared in the Korean Supreme Court cases is quite different from its U.S. version, in that the Korean Judiciary does not recognize a presumption that directors acted independently with due care and thus second-guesses directors business decisions, while the U.S. rule is regarded as a presumption of sound business decisions that is very difficult for the plaintiff to overcome. In short, the Korean version of the business judgment rule should be understood as an element of a sui generis system of a directory duty of care.