영미법상의 司法政策的 관점에서 본 경영판단 원칙의 변화단계 연구 － 미국 델라웨어 州 판결의 역사를 중심으로 －

The change in corporate governance law influences not only each individual corporation but also a country’s economy. The Delaware courts have reduced the liabilities of corporate directors for about ninety years and established the most liberal corporate law in the United States. Today, Delaware is the sole winner of the U.S. corporate law market and has many economic advantages, such as initial incorporation taxes, annual franchise taxes, the prestige of being the biggest corporate law market in the United States, and so on. Today, in my opinion, the “duty of loyalty” and the “duty of care,” the twin pillars of the “fiduciary duty” of directors’ liabilities in the Delaware business judgment rule, are virtually extinct, with the exception of their names. In my opinion, this is, from the Delaware courts’ standpoint, a so-called opportunism of judicial policy and intentionalism of judicial policy. Judicial policies of Delaware courts are expected to continue when we consider Delaware’s endeavor for about ninety years to maintain a most liberal corporate law in the United States. Moreover, the U.S. Congress and federal government of the U.S. are expected to not interfere in this situation except in the event of a big scandal, because they have a good understanding of the merits and efficiency of competing U.S. corporate law system. However, in my opinion, Delaware’s judicial policy cannot continue forever, because the “business judgment rule” cannot be a so-called business judgment no liability rule, though Delaware’s corporate law has several merits.