총수익교환스왑계약의 체결과 경영판단원칙의 적용: 수원지방법원 여주지원 2016. 8. 24. 선고 2014가합10051 판결

The court decision of this case (hereinafter referred to ‘Decision’) is on a series of derivative contracts entered into by the company in question (hereinafter referred to ‘A Corp.’) to effectively acquire the shares of the affiliated company and eventually to survive the corporate group to which both the affiliated company and A Corp. belong. Decision is a unique case dealing with whether or not it meets the business judgement rule when the managers made the arrangement which is disadvantageous from the viewpoint of their company but necessary for the corporate group not to dissolve. The author concluded that the Decision is not justifiable. Because (1) it did not properly considered the risk of the total return agreement, (2) it did not balance between the two presumptive situations in which A Corp. may belong to the current corporate group or to the other corporate group, (3) it’s judgement on self-dealing or credit provision action lacks the sufficient legal grounds. Especially when compared with the example of past business judgment rule cases, I think that the Decision exempted the management team of A Corp. “too clearly”. As a result, there is a possibility that it can be misleading to justify the old-time practice of forcing corporate groups or affiliates to sacrifice for the benefit of the owner by considering the corporate group and the owner as one subject. Therefore the author wants to conclude that the Decision should be reconsidered considering the foregoing points.