상법상 이사의 책임 논의의 최근 동향

Through this Article, I intended to provide recent development of legal circumstances regarding directors’ and officer’s liability (“D&O”) by introducing several changes aroused after the height of the financial crisis with taking a helicopter view. There are various arguments against the duty of care. In my opinion, duty of care may look like an ill-fitting appendage of the duty of loyalty, but, it might be rather a core aspect of the singular fiduciary concept that also involves the duty of loyalty. In the context of duty of care, the few court cases focus on the divergence between standard of conduct and standard of review under corporate law. However, while standards of conduct and review converge in most area of law, standards of conduct and standards of review diverge in cooperate law. This divergence is most evident in business judgment rule. In most states, in the matter of law, director liability for breach of the duty of care is, or can be, limited or even eliminated altogether. The law could include the exculpation provion that absolutely eliminates directors’ exposure to personal liability for breach of the duty of care through legislation proces. As a result, directors generally cannot be subject to any accountability for the breach of the duty of care and one could not expect the lawsuits that do arse to lead to the imposition of personal liability on directors. Directors and officers liability could deter corporate wrongdongs. D&O insures facilitate deterrence through a various mechanisms such as exclusion, selective underwriting, offering input for the company’s corporate governance, and withholding coverage from fraudulent directors and officers. Through this article, I did not simply intend to provide a comprehensive defense of the fiduciary dury of care in commercial law, but I also intended to provide some polity implications to Korea regarding recent debates on the treatment of the officers’ liabilities in corporations and financial institutions.