내부통제시스템 구축의무와 이사의 책임

Recently, precedents have been adjudicated that acknowledged the liability of directors for damages due to non-compliance with the obligation to establish an internal control system. Precedents have revealed held that directors have been obliged to establish an internal control system since 2008, and in case of violation, even if they were not directly involved in the illegal act, the director could be liable for the company's damages from illegal act. After 2008, it was difficult to find a Supreme Court decision that explicitly set forth the relevant legal principles, but in 2021, the Supreme Court have sentenced a judgment decided that accepted the responsibility of directors for violating the obligation of establishment of an internal control system or internal monitoring. In the same year, the Seoul High Court also sentenced a judgment to the expanded the holding that even outside directors could be held liable for the damages. Interestingly, In the United States, notable judgments on the same subject have recently continuously decided. In the past, in the United States, the duty of directors to maintain the internal control system was recognized according to the Caremark judgment, but there were very few possibilities in which the responsibility of the directors was admitted. This thesis was written with the idea that it is necessary to clarify specifically the scope of the directorʼs personal responsibility. In particular, this thesis researched the recent trends in the United States, which began to actively apply the Caremark jurisprudence, and find out what the plaintiff must prove, what the directors must have done, and what arguments can be made as a defense. This thesis also clarifies the scope in which the obligation to establish an internal control system and the responsibility for the violation were divided defined in accordance with depending on the type of directors. In addition, there can be various different types of illegal acts by executives and employees, and to what extent the director's personal responsibility can be imposed was discussed as a matter of the scope of risk management in this thesis. It was intended intends to comprehensively include issues that may arise in the process of pursuing the caremark responsibility litigation, such as ESG, illegal acts occurring in subordinate companies of the conglomerate group, the different responsibilities in accordance with depending on directors type, the principle of business judgment. Understandably if the internal control responsibilities of directors are expanded, it has the advantage of promoting compliance management of the company. Conversely, there are several disadvantages, such as an increase in the cost of building an internal control infrastructure and repeated unnecessary and exhausting advices from advisory. This paper was intended to clarifies the personal responsibility of the directors would be admitted in which certain conditions under the current legal principles, and to limit the scope within a reasonable range. In the future, it is expected that the scope of directors' responsibility for violation of the obligation to establish an internal control system will be more clearly defined through precedents in practice