판례상 분식회계와 자본시장법상 이사의 책임

The Financial Investment Services and Capital Market Act(the “CMA”) prescribes that an issuer should disclose material information to an investor under the disclosure system. If there is any false statement or ommission in a relevant document disclosed, the persons who are involved with such disclosure should be liable to investors. Such persons involved is able to be indemnified if they prove that they did due-diligence care under the due-diligence defense. The due-diligence defense is adapted from the U.S. Our courts have held findings referring to such U.S. court cases. However, we need to know that the defense is centered on an underwriter not a director. The underwriter, as an outsider, performs due-diligence around at disclosure to solicit an investment. A director, as an insider, has duty to monitor accounting fraud throughout the entire period of his serving. The director has provides documents with the underwiter and outsider auditor for due-diligence purposes. Here, I points out tht the concept of such traditional due-diligence defense does not work well to the director. More importantly, it does not give any ex ante standard to a director at all. Thus, I have suggested some ex ante guideline for a director under the title of a duty to find circumstances of poor management. I put a focus on a outsider director whose main role is to oversight but who have difficult with accessing inside information and accounting committee member, which is center of a current corporate governance. I hope due diligence defense work as ax ante standard for a director just like a Business Judgment Rule which is a defense in a director liability suit.