영국에서의 회사지배구조의 전개

The duty of care and skill to which company directors ought to be subject remains a matter of ongoing interest and controversy. In the UK, for example, the Law Commission has recently recommended that the duty be recast in explicitly objective terms. This article argues against such an approach. It begins by noting a crucial distinction, which proponents of an objective standard typically fail to observe. On the one hand, we are rightly concerned to limit directorial shirking and to ensure that the role of the modern director, and the various functions which ought properly to constitute that role, are defined in suitably expansive terms. On the other hand, we must decide in what circumstances a director who fails to perform these various functions is to be held liable. These are separate questions. Proponents of an objective standard, however, too often assume that just in order to deal with the first concern, the law must impose an objective standard of liability. But that is not the case. The law can develop an expansive and onerous account of the role of a director, yet employ a subjective standard of liability, holding a director who fails to fulfill that role liable only where she herself was capable of meeting its demands. So doing would not reduce the incentive on directors to fulfill their roles; even a subjective standard of liability requires a director to do her best, and that is the strongest incentive any duty can generate. But a subjective standard would place the risk that the director‘s best would prove inadequate where such risk ought to lie, namely upon the company. The article concedes that the position becomes more complex where the issue of the selection of directors is factored in. An objective standard might have some marginal effect in preventing those whose best will be inadequate from becoming directors in the first place. The article argues, however, that such an effect is indeed likely to be modest and insufficient to overcome the other advantages of a subjective standard of liability. The article's only concession to an objective standard arises where third parties (meaning non-shareholder groups) are likely affected by directorial incompetence, essentially on insolvency.