미국 델라웨어주 판례법상 이사의 감독책임에 관한 비판적 고찰 - Stone v. Ritter 사건 판결을 중심으로 -

The duty to monitor is closely related to the occurrence of harm to the corporationarising from wrongdoing, illegality, or other harmful activities. A director is, therefore,obliged to monitor and oversee whether or not officers or employees commit wrongdoingor violate laws and regulations. A breach of the duty to monitor may impose oversightliability on directors. The Delaware courts have developed the doctrine of the duty tomonitor through a series of derivative suits like the Graham case and the Caremark case. Specifically, the Delaware Chancery Court in the Caremark case held that the board ofdirectors should have a responsibility to establish internal control system in the context ofoversight. The Delaware Supreme Court' recent decision in Stone v. Ritter is greatly significant insome respects. First, legal debates over independence of the duty of good faith are over. The Delaware Supreme Court clearly denied the argument that the obligation to act in goodfaith should establish an independent fiduciary duty. In addition, the salient decision is thatthe duty of good faith is a subsidiary element of the fundamental duty of loyalty. Second,the seminal effect of the Stone case is the fact that the duty of loyalty includes the duty tomonitor. Furthermore, the duty of loyalty is not limited to the cases involving a financialconflict of interest. In this sense, the Stone case results in expanding the classic scope ofthe duty of loyalty. The Delaware doctrine of the duty to monitor should be criticized in some points. First,the duty to monitor in Caremark dose not induce active and effective director oversight. Second, the scope of the duty to monitor is limited under the Stone case. Third, theexculpatory clause under the Delaware General Corporation Law may be necessary toamend in the context of the duty to monitor. Fourth, in the context of banking regulation,a bank director's oversight liability is not appropriate under the Stone case. Lastly, thestandard of review in respect of a breach of the duty to monitor is too easily avoided toprovide substantial deterrent effect. It is, therefore, very difficult to improve directoroversight in a meaningful way because the standard of review actually eliminates the threatof liability. In conclusion, it is necessary to consider significant differences between the Koreancorporate law and the Delaware corporate law in order to introduce both the doctrine ofthe duty to monitor and the doctrine of the duty of good faith in Delaware.