상법상 이사의 회사에 대한 책임과 민사소송상 주장·증명책임

As a matter of practice in the claims seeking the remedies for the corporation’s damages done by the directors or the officers, especially in the derivative suit brought by the minority shareholders, the business judgment rule has come to play an important role. However we have to note the significant discernment in applying the business judgment rule between in the U.S. courts and the Korean courts. The business judgment rule would not apply in the violation of the statutory regulations (including the articles of incorporation) but apply in the breach of the duty of care (excluding the duty of loyalty). In deciding the allocation of the burden of proof as a result of applying the business judgment rule we have to keep in mind that since the Korean courts have established a different standard differentiating or deviating from the U.S. business judgment rule, we should be careful enough to deal with the applicable test in the specific case. The legal nature of the director’s liability for the corporation prescribed in Article 399 of Commercial Act of Korea has to be justifiably interpreted as the one basically predicated on the non-performance obligation of the obligor by failing to effect the performance in accordance with the tenor and purport of the obligation prescribed in Article 390 of Civil Act of Korea. Therefore the burden to plead and prove the obligor’s intention or negligence lies not in the obligee but in the obligor. Accordingly the plaintiff shareholder has the burden to show that the defendant director has violated the ordinarily or objectively required duty of care ahead of defendant’s argument for the business judgement rule. Then the burden will shift to the defendant to show that he or she did not breach the duty of care intentionally or negligently. In that stage if the defendant succeeds to plead and prove the operative facts applicable to the business judgment rule, the behavior on the part of the directors or the officers is presumed factually to be legitimate enough to dismiss the case. The factual presumption can be challenged easily by the evidence amounting to arouse the contradictory suspicions of the trier of fact (the judge). In that respect the business judgment rule applicable in Korea is in contrast with the business judgment rule in the U.S. under which the presumption is strong enough to hardly rebut. The interdisciplinary study is needed to elucidate more clearly the extricable problems as regards the substantive directors’ liability and the procedural applicable burden of proof.