기업집단에서 지배회사 이사의 의무와 책임 -지주회사 이사의 의무와 책임을 중심으로-

This study addresses the unique legal issues that may arise during the operation of holding companies, especially focused on those directors’ duties and liability, excepting the general issues about the single individual companies. As regards the directors’ duties of the holding company -even though there are not any current regulations or cases- the directors of the holding company have a legal duties to exert control over the subsidiaries. They as it currently exists have a duty to increase a value of the holding company itself by maintaining and increasing the holding company's assets. Because the shares of the subsidiaries are a part of the assets of the holding company, the directors of the holding company should have the affirmative duty to increase and maintain the value of the subsidiaries. In doing so, the directors of the holding company may use not only de jure rights but also de facto control over the subsidiaries. In order for the directors of a holding company to exercise his duty to direct the subsidiaries, they must have legal right to direct the subsidiaries and the subsidiaries must be legally bound to abide by the director’s directions. Next, with reference to the liabilities of the directors of a holding company, if directors of the holding company direct to directors of their subsidiaries to make a decision contrary to the interests of the subsidiaries, the directors of the holding company may face liability to their subsidiaries though which are the separate legal entities. The Korean Commercial Code §401-2 provides the liability of the directors of the holding company to their subsidiaries. This study points out a problem of the Korean Commercial Code §401-2 and proposes its solution. If the directors of the holding company are held liable to the holding company and to their subsidiaries concurrently, it is simpler and clearer way to call the liability to the subsidiaries first rather than to the holding company. Moreover, this study suggests that they shall not be deemed to have acted in breach of their fiduciary duties even if they give directions to the directors of their subsidiaries for the interests of the corporate group. Recent Supreme Court judgement admits the “group defense” under clear and technical conditions and thus it supports this study’s argument.