경영판단원칙 입법화를 위한 법정책 소고

The business judgment rule have been discussed in various forms in major countries around the world since they were first recognized through precedent in the United States. Academic active discussions have been held in many countries and accepted in actual cases. It is also recognized through precedents in Korea, and discussions such as arguments for legislation are active. In this article, we looked at trends in the United States, Germany, and Austria on the business judgment rule and examined how it is appropriate to define our commercial act through the contents of legislative backgrounds and regulations of Germany and Austria. Our precedent states that “a reasonable director performed his/her duties in accordance with the best interests of the company in accordance with the appropriate procedures at the time, and if the decision-making process and contents are not significantly unreasonable, the director's actions are within the discretion of allowed business judgment.” If the procedures of the decision-making process are reasonable and the contents do not deviate significantly from the scope of decision-making that the director can make, it will be necessary to allow the business judgment rule. There are differences in views from criminal act and commercial act regarding the introduction of business judgment rule, and views are at odds over legislation. Given that the recent business situation requires the swiftness of decision-making, it is necessary to legislate to exclude the decision made if the decision was reasonable when the director complied with the procedures leading to business judgment. Ultimately, it is necessary to seek ways to minimize the scope of judicial review or to link elements of content judgment to procedural compliance so that faster business judgment can be made. In this regard, this paper reviewed related legal issues and proposed a plan to stipulate the business judgment rule under the Commercial Act.