경영권을 방어하기 위하여 총수익스왑계약을 체결한 경우 이사의 책임에 관한 판례 평석 - 고등법원 2019. 9. 26. 선고 2016나2063874 판결을 중심으로 -

Hyundai Elevator has signed a number of stock total return swap with financial several companies to defend its management rights over Hyundai Merchant Marine. According to this contract, the contracting party acquires shares of Hyundai Merchant Marine, exercises voting rights in the same way as Hyundai Elevator, and compensates the contracting party for the entire loss in the event of a fall in stock prices. Due to the conclusion of this contract, Hyundai Elevator defended its management rights to Hyundai Merchant Marine, but suffered enormous damage as Hyundai Merchant Marine's stock price fell. As a representative lawsuit was filed to question the responsibility of the director, the district court ruled against the plaintiff, but the high court ruled in favor of the plaintiff. The district court ruled that Hyundai Elevator gained profits such as management premium and maintaining its status as an affiliate of Hyundai Group by holding management rights of Hyundai Merchant Marine, and that all of the total revenue swap contracts concluded had undergone a procedure to collect, investigate, and review necessary information to the extent reasonably available. On the other hand, the High Court ruled that it was difficult to recognize the management premium, and even if it did, it did not seem to bear the damage that could be caused by signing a derivative contract, and that directors should compare the current controlling shareholder to determine who was in the interests of Hyundai Elevator, whether it had undergone a procedure to collect, investigate, and review necessary information within a reasonable range for each contract signed. In this paper, the validity of the judgment is reviewed. Since a company for profit can pursue various economic benefits, it can enter into a total return swap to protect the premium for management rights. However, there is a risk of a large loss due to the conclusion of this contract, so before signing the contract, necessary information must be collected, investigated, and reviewed within a reasonably available range. In this regard, it is reviewing in detail whether the directors went through these procedures and signed a total return swap on September 20, 2010. In addition, the validity of the lower court ruling that benefits from maintaining the status of Hyundai Group affiliates by holding management rights and the high court ruling that imposes the obligation of controlling shareholders to choose are reviewed in detail.