이사의 제3자에 대한 책임의 고찰 - 상법 제401조 1항에 대한 논의를 중심으로-

Directors, needless to say, abide by laws and should not breach others’ rights while carrying out business activities as the agents of management. However their activities sometimes infringe on others’ rights, which can cause a problem of company’s tort liability. The cause of the company’s tort liability varies from breach of rights in the case of pollution and fraud transaction to the violation of contractual obligations. Moreover, regarding the tortious acts by the corporation if the tort is concluded to have resulted from a director’s negligence of his duty, the director should be personally liable for the third parties(creditors or shareholders) whose rights are breached. Majority of scholars interpret the liabilities as a specially imposed statutory duty in order to protect the third party. The liabilities are widely understood to call directors’ personal account when the company does not own enough resources for the third parties and the company’s creditors can not collect debt. The cases in which directors are liable for the third parties are as follows. First, directors are liable for ill-intention or gross negligence. Second, directors are responsible under the clause 1 of the article 401 of the Commercial law when they damage the third parties by writing a false statement on papers like a stock application, a debenture subscription form, and a financial statement or making a false notice or registration. There are a few reasons why the Commercial law has the article of protecting the third parties. First, limited companies hold an important status in the economic society. Second, the actions of companies rely on the performance of directors’ duties. Third, the cases damaging the third parties by the abuse of directors’ authorities happen quite often as their authorities are getting strengthened.