善管注意義務와 忠實義務에 관한 이론의 발전과 전망

Directors of corporations should conduct their mission for corporate business in compliance with the duty of care prescribed in § 681 of the Civil Code. The duty of care operates as a basic standard for the legal evaluation of directors’ behaviour. Section 382-3 of the Commercial Code (“CC”) which was introduced in 1998 by the amendment of the CC requires directors to act faithfully in their business. Corporate legal scholars have debated how this section works in relation to the above mentioned duty of care. One theory argues that § 382-3 of CC is simply repeating the duty of care and adds nothing to directors’ legal obligation. However, another theory regards § 382-3 of the CC as a newly created duty of corporate directors, i.e. and suggests that this section should be understood as enacted to introduce the trustees’ duty of loyalty as observed in the Anglo-American common law. The author, on the basis of the historical background of these two duties and the generally accepted methodology of interpretation of statutes, demonstrates the reason why Section 382-3 of CC could not contain any duty beyond the meaning of the traditional duty of care. In conclusion, he suggests that, instead of debating whether there is a new duty created by this section, legal scholars should rather shift their discussion to the interpretation of the traditional duty of care.