이사의 제3자에 대한 책임의 재검토

Article 401 (1) of the Korean Commercial Act stipulates, “If a director has neglected his/her duties by intention or gross negligence, he/she shall be jointly and severally liable for damages suffered by a third party.” Article 401 (1) originates from Article 266-3 (1) of Japan’s 1950 Commercial Act. At first, in Japan, a director’s liability to third parties were regarded as tortious liability. However, after the Russo-Japanese War, the country witnessed uncontrolled creation of stock companies, many of which went bankrupt due to irresponsible management by their directors. These bankruptcies caused serious socioeconomic issues. As an emergency measure to address these issues, the third party liability provision came to be perceived as a provision that enhances a director’s liability to protect third parties. As a result, ‘the statutory liability theory’ became the majority theory in the country. However, ‘the statutory liability theory’ not only has a legal flaw, but also lacks consistency with the general legal system. For this reason, it is necessary to reappraise whether this provision should be maintained as a "general provision" on director’s liability to third parties. A director holds a significant position in the company. Therefore, a director should take liability that corresponds to their actions. However, we should be careful not to subject directors to excessive liabilities. There is no guarantee that enhancing a director’s liability will result in enhanced protection for third parties. In addition, the recent emphasis on sustainability requires companies to encourage their directors to make daring and innovative business decisions. From this perspective, it would be reasonable to see Article 401 (1) of the Commercial Act as a provision that exempts a director from tortious liability to third party arising from minor negligence. At the time when ‘the statutory liability theory’ became the mainstream theory for a director’s third party liability, the theory on denial of legal personality and the system of creditor subrogation had not been fully established. Now, the theories and systems have been fully incorporated into the civil law system. Then, given the inherent flaws and the incongruity with other parts of the legal system, Article 401 (1) of the Commercial Act has exhausted its reason for existence. In conclusion, if the existence of this provision is premised, I think that ‘the special tort rule theory’ is the most reasonable as an interpretation theory. However, considering the psychological reluctance to reduce director’s liability and the difficulty of changing precedents, repealing this provision may be an alternative.