기업집단 내 계열사 간 지원시 경영판단원칙의 새 기준-대법원 2017.11.9. 선고 2015도12633 판결에 대한 평석을 중심으로-

The recent ruling by the Supreme Court boils down to the answer of the fundamental question, “Should the support be provided to a financially troubled subsidiary by the decision of a Chaebol owner who is not pursuing personal gain?” All in all, according to the Supreme Court, “while those subsidiaries have sufficient competitiveness, if almost all subsidiaries in the group are in a collective financial hardship due to a series of unlucky events in and out of the companies, the owner of the group has no other choice but to do anything necessary to revive such subsidiaries within the boundary of legality. Even though they failed to go through the necessary steps or set a sufficient amount of securities, while both the subsidiaries that provide such supports and those that received them were collectively in a financial hardship, if the purpose of such action was for revising those subsidiaries without pursuing personal gains, it should be considered that there was no deliberate intent of malpractice.” If the owner owns a good portion of the stocks of the subsidiaries and therefore has the status of single shareholder or at least the majority shareholder for many of such corporations, such a notion may be able to stand its ground. As the owner owns most of the stocks, it is less likely to cause the issue of conflict of interest with other shareholders (which is the basis for the very existence of the business judgment rules of the United States), while the boards are likely to be under their control, as well, the failure to go through a voting process might be excusable. However, for small shareholder, they are unfairly forced to bear the risks of other subsidiaries in their investment into a certain subsidiary, which can be a violation of the interest of these small shareholders. Therefore, these five criteria are difficult to be applied as a permanently standing basis. The ruling of the court, therefore, appear to be appropriate in consideration of the current situation. The author has no other choice but to agree with the ruling of the Supreme Court, as well. The fluctuation of the economic cycles, the ownership structures of Chaebols, and the public’s legal sentiment, all require that the business judgment rules need to have some flexibility in them. As the external business environments are worsening every day and preserving jobs of the employees become a social concern, while even Chaebols are now having widening gaps in terms of wealth among themselves, such a ruling by the Supreme Court will give a precious chance of revival for some groups of companies helping out their subsidiaries in poor financial conditions.