이사의 선관의무와 충실의무의 법사학적 기원에 관한 고찰

In Korea, the 1998 amendment to the Korean Commercial Code introduced a catchall provision which is analogous to the director’s duty of loyalty in U.S. corporate law. Prior to the amendment, Article 382(2) of the Korean Commercial Code provided that the relationship between a corporation and its directors was to be governed by the provision of mandates in the Korean Civil Code. According to the mandates, mandatories are assigned the duty of care as a good manager, therefore, as mandatories,directors also have the duty to conduct the business of the corporation with reasonable care as a good manager. Since 1998, there has been extensive theoretical debate over the significance of the catchall provision about duty of loyalty. As to whether the distinction between the duty of loyalty and duty of care as a good manager should be recognized under the Korean corporate law, two competing views have developed. Some scholars argues that the catchall provision is only one facet of the duty of care as a good manager,notwithstanding the fact that Article 382-3 is remarkably similar to the fiduciary duty of loyalty in Anglo-American law. On the other hand, there is an emerging view arguing that the catchall provision of Article 382-3 should be distinguished from the duty of care as a good manager. However, this theoretical debate seems to have overlooked the significance of the historical origin of the duties. To begin with, this study traced back to bonus paterfamilias in Roman law to find the historical origin of duty of care as a good manager. Bonus paterfamilias means good or diligent father of family, and comprise the classical definition of the Civil law’s culpa levis in abstracto. Moreover,bonus paterfamilias and part of culpa levis in abstracto strays into common law language in the late nineteenth century, as a device to intensify the duty of care. Meanwhile, the concept of fiduciary duty of loyalty originates from the law of trust, more specifically, the English Equity. Roman idea such as fideicommissum or fiducia may have helped to provide vocabulary for fiduciary itself. However, the prototype of fiduciary duty of loyalty begins with Keech v. Sandford(1726) which is the case of the Chancery Court. Fiduciary duty of loyalty is typically described as : a fiduciary must avoid conflict fiduciary’s duty and his personal interest and must not derive any unauthorized profit from his fiduciary position. Fiduciary duty of loyalty’s strict characteristics explains the vulnerability of human nature which is likely to be swayed by personal interest rather than by duty as a fiduciary. As a result, the corporate directors’ duty of care as a good manager, the duty to conduct the business judgment with the reasonable care has substantially different nature and historical origin in comparison with the duty of loyalty as a duty to avoid to conflict of interest and duty. Therefore, having confirmed a basic difference of the historical origins and the nature between the duty of care as a good manager and the duty of loyalty, there is an opportunity to highlight one particular aspect of the duty to avoid conflict of interest and duty as a fiduciary duty of loyalty.