미국 뉴욕주 회사법상의 은행 이사의 주의의무와 책임에 관한 연구

Generally speaking, a director owes fiduciary duties to the corporation and itsshareholders. These duties include the duty of care, the duty of loyalty and the duty ofgood faith. Accordingly, a director should act in good faith and in a manner the directorreasonably believes to be in the best interests of the corporation. If he does so, thebusiness judgement rule will protect him from his personal liability in a duty of care case. A duty of care of bank directors, however, is greatly different from that of directors inother business corporations. The reason is due to a public and special nature of banks. Furthermore, a bank regulator has heavily regulated and supervised capital and business ofbanks because of a public and special nature of banks. First of all, the importance of abank is undisputed in view of the fact that a bank has greatly played a public role underthe financial system. Second, a bank has performed a liquidity production function for theeconomy. Third, the deposit insurance system has greatly contributed to preventing bankruns and keeping safety of banking system. The deposit insurance system, however, hasresulted in creating a problem of moral hazard. That is to say, a bank has tended to engagein excessive risk-taking at the expense of depositor's interest. Fourth, a conflict betweenthe interests of debtholders and the interests of shareholders is particularly severe in thebanking context. Fifth, asset structure of a bank increases risk of fraud and self-dealing. The duty of care owed by bank directors is much broader and higher than that of otherdirectors considering a public and special nature of banks. Under the New York Corporation Law, courts have consistently imposed a strict liabilityon bank directors and refused to apply the business judgement rule when assessing bankdirector's conduct. In addition, a detailed duty of care of bank directors is codified underthe New York Banking Law. In conclusion, bank directors should be held to a broader and higher standard of dutyof care than other directors. That is to say, it is legitimate and desirable to impose a stricterliability on bank directors in view of the fact that there have been recently a lot of fraud,misconduct and wrongdoing in a bank.