경영악화상태의 회사 채권자에 대한 이사의 신인의무

Fiduciary duty law generally directs directors to act in the best interests of “the corporation and its shareholders.” Directors may violate their duty of care if they are grossly negligent in carrying out their duties, while the duty of loyalty requires the director to act in the best interest of the corporation, and comprises, among other things, an obligation to act in good faith. Rather, directors do not owe fiduciary duties directly to creditors, however, some models or theories such as the team production theory argue that directors should consider various “stakeholders” including creditors while acting on behalf of the corporation as a whole. But, upon insolvency, it is clear that directors must shift at least some of their attention to the corporation’s creditors. Some commentators have argued that directors should only consider the interests of the corporation, while other commentators, under the trust fund doctrine, have suggested that directors should no longer concentrate on the interests of the shareholders, but rather should focus on the creditors’ well-being. In Delaware, the courts have noted that creditors may sue derivatively on half of the corporation for breaches of fiduciary duty when the corporation crosses into insolvency, rather than having to wait until a statutory bankruptcy filing. This article reviews the recent Delaware case law regarding the directors’ fiduciary duties in insolvency in order to try to find the legal implication comparing to the Article 401 of the Korean Commercial Code.