수임자의무(Fiduciary Duty)에 대한 영미법의 해석론 비교연구

The economic crisis of the late 1990s greatly affected the Korean corporate law including other financial rules. One of the significant changes for corporate law is the rule regarding directors’ liabilities. Aside from the existing duty of care as a good manager for directors, the fiduciary duty concept in Anglo-American law was incorporated into the Korean corporate law system. Without an expansive review of fiduciary principle in Anglo-American law, the Supreme Court interpreted the new fiduciary duty as an identical concept as the duty of care as a good manager. This article focuses on the judicial review of the fiduciary principle and proceeds in two substantive sections. Under the American legal system, all duties owed by a fiduciary are appropriately treated as fiduciary duties. Moreover, academic researches including cases regarding fiduciary relationship and duties, consider the boundary of a fiduciary position as open-ended. On the other hand, fiduciary law in UK and Commonwealth made an effort to pursue the existence of peculiar fiduciary duties, which are the duties that fiduciaries owe but not owed by non-fiduciaries. Considering the duty of loyalty as the peculiar fiduciary duty, the fiduciary doctrine in UK emphasize that the fiduciary duty is designed to protect proper performance of the non-fiduciary from inconsistent influences and prohibits the fiduciary from acting in a situation where he has a personal interest which is inconsistent with his non-fiduciary duty. The distinction between the American legal system and the English legal system regarding the fiduciary principle generated divergence in the scope of a fiduciary position, the function of fiduciary duties and remedies for the breach of the fiduciary duties. This comparative research on the interpretation of fiduciary doctrine suggest Korean courts how to review the article of 382-3 of Commercial Law for directors’ liabilities.