경영판단 원칙의 최근 동향과 향후 전망 - 미국의 사례를 중심으로 -

The business judgment rule is a helpful description of a basic principle applicable to business decisions by boards of directors. By the application of that rule, the decisions made by the board of directors upon reasonable information and with some rationality do not give rise to directorial liability for many types of actions that turn out badly from the standpoint of the corporation. The business judgment rule has been involved in numerous cases brought against directors of corporations that face unwanted takeover attempts and adopt defensive tactics designed to defeat the takeover. In the derivative litigation, the application of the business judgment rule has been controversial. In Stone case after Van Gorkom, Caremark, Disney, two imortant strands of Delaware corporate law converged; namely, the concept of good faith and the duty of directors to monitor the corporation’s employees for law compliance. As to the good faith, Stone stated that “ although good faith may be described colloquially as part of a ‘triad’ of fiduciary duties that includes the duties of care and loyalty, the obligation to act in good faith does not establish an independent fiduciary duty that stands on the same footing as the duties of care and loyalty. But the Stone court made clear that acts taken in bad faith breach the duty of loyalty. As a result, good faith has been subsumed by loyalty. After Enron, the U.S. government enacted the Sarbanes- Oxley Act and Delaware tried to enlarge the applicable scope of the duty of loyalty. As a result, I think the scope of the business judgment rule would not be extended in the future. Recently Korean government tries to amend the Korean Commercial Code to introduce the advanced legal system. But the business judgment rule is not included in the amendment. A lot of Korean companies tries to be globalized in many aspects. Their management have discretionary authority in conducting domestic as well as international business. I think it is required to protect the management by the business judgment rule.