이사회 결의에 기권한 이사의 책임 -대상판결: 대법원 2019. 5. 16. 선고 2016다260455 판결-

The ruling was a case in which Kangwon Land sought damages against a board member who resolved to donate the money at the board meetings. This ruling addresses the issues concerning Article 399-3 of the Commercial Act and the duty of care. In this paper, we looked at the directors' duty of care and the responsibilities of directors under Article 399 of the Korea Commercial Act. First of all, directors are required to make a resolution to actively participate in the board of directors based on their duties to monitor, but abstaining is hardly a violation of their duties to monitor. Meanwhile, Article 399-3 of the Commercial Act originated in the old Commercial Act of Japan, and it is explained that Article 369-5 of the current Japanese Company Act, which inherited the provisions, was also made to facilitate the proof that it was in favor of the resolution. The Supreme Courfs ruling includes not only 'opposition' but also "abstention" in the concept of "objection" in Article 399-3 of the Commercial Law, a valid interpretation considering its relations with other condolence, but those who abstained should not have seen it as an objection. The ruling explains that the clause takes into account difficulties in proving directors' responsibilities, but it is questionable whether it is necessary to protect those who question directors' responsibilities to the extent that they change their burden of proof.