經營判斷原則의 導入에 관한 再檢討 - 獨逸 株式法을 중심으로 -

The purpose of this research is to establish appropriate foundations and to cultivate right relationships of corporate governance to introduce the business judgment rule without conflicting with the existing legislation under the Korean Commercial Act. Under the premise that the economy should attract foreign capital and thereby be stimulated, the protection of shareholders of companies will inevitably be an issue in legislation. This article aims to strike a balance between minor shareholders and creditor protection and nimble management of corporation. It is necessary to examine the matter in a larger perspective than in the discussion of traditional regulations of corporate governance. The business judgment rule is legal doctrine that protects directors, officers, managers, and other agents of a company from civil liabilities to the corporation for loss incurred in their business decisions within their authority when there is sufficient evidence to show that the decisions were reasonably well informed, made in good faith, and without conflicts of interests, fraud or illegality. It is a judicially created doctrine and has been developed through case laws. Although it has been 20 years already since some scholars and lawyers insisted the necessity of application of this rule in Korea, even the most recent Korean Revised Commercial Act does not yet accept these opinions. Recently the needs of introducing this rule are increasing in our corporate society due to the development of corporate governance and corporate revitalization. Since there are significant discrepancies between corporate law on the books and the institutional reality of corporate practice, it follows an emerging tendency in comparative legal researches by seeking to give a highly integrated view on the Commercial Act that provides a clear framework.