보수계획의 승인과 이사의 의무 - 골드만삭스 관련 판례를 중심으로 -

Although a procedural rule, the demand requirement in derivative litigation is one of the most consequential doctrines in corporate law. Its touchstone, for Delaware law, is the decision in Aronson v. Lewis, in which the Supreme Court established a test for determining whether shareholder demand is futile and therefore unnecessary. This Article contends that the Aronson test is flawed. Its test for demand futility, in certain circumstances, overly restricts board authority. Furthermore, it encourages rational boards to delegate more corporate decision-making to management and board committees than they would otherwise. The Aronson test, venerable as it is, ought to be refashioned. Because of the demand requirement, shareholders may not independently pursue legal action on behalf of a corporation and must instead “demand” that the corporation’s board of directors initiate litigation. The demand requirement is a natural outgrowth of the authority that corporate law vests in the board to make corporate decisions, including litigation decisions. Boards are then free, within the boundaries of their fiduciary duties, to determine whether to accept or refuse the demand. Demand is not required, though, if it would be futile to ask a board to initiate the relevant lawsuit. This futility exception allows board authority to be overridden under certain circumstances in order that fiduciary duties remain enforceable. Aronson held that demand is futile when there is reasonable doubt that, inter alia, the underlying board decision was the product of a valid business judgment. Throughout this Article, that underlying board decision is referred to as the “Original Decision,” while a board’s decision to accept or reject the demand (assuming it is made by plaintiffs) is referred to as the “Demand Decision.” Although Aronson examines the Original Decision, it does so not because all bad Original Decisions are necessarily appropriate subjects for legal action by the corporation. Rather, Aronson looks to the merits of the Original Decision when there is reason to doubt directors’ ability to make an impartial Demand Decision if the Original Decision was bad, i.e., if they might face personal liability because of the Original Decision.