이사의 감시의무와 내부통제시스템에 대한 고찰

In Korea, the academia and the courts accept a director’s oversight duty (the “Oversight Duty”) which is included in duty of care. Realistically since it is difficult for directors to oversee all matters of the company the details and judgment criteria of the Oversight Duty are important. Recently there have been a series of the Korean Supreme Court rulings on the Oversight Duty and an internal control system (the “System”). Therefore, the importance of the System is growing as the factor in determining the details of Oversight Duty and in judging the violations of the Oversight Duty. The Oversight Duty does not mean that even in case there is no cause for suspicion directors should ferret out wrongdoing. The courts impose the duty of the implementation of the System and oversight of operation of the System on directors, and the courts judge the relevant cases in accordance with the Caremark standard. Only if directors knew that they were not discharging their fiduciary obligations and they either utterly failed to implement the System or consciously failed to monitor such System once it was implemented they will be liable for failure of oversight. Also, the mission critical regulatory compliance is the important factor for the Caremark standard. In Korea there seems four Supreme Court cases on the Oversight Duty and the System. Per the cases, the duty of the implementation and oversight of the System are the details of the Oversight Duty and judgment criteria are different between inside directors and outside directors. Inside directors will be liable for the failure of oversight only if they either utterly failed to implement the System or consciously failed to monitor such System once it was implemented. However, outside directors will be liable for the failure of Oversight Duty if either they do not urge the implementation of the System or even though the System is not operated properly they neglect it. Also, the effectiveness of System is important. For the effective System the mission critical regulatory issues should be reported to the boards through the System immediately. On the establishment step, it is necessary to identify the company's legal risk and establish an independent division for the operation of the System. Also, the urgent and ordinary procedures for reporting to the boards should be established. Whistle-blower system is also recommended. On the operation steps, the boards should review and discuss the report professionally, and monitor the mission critical issues regularly. This review and discussion should be recorded in the minutes. Also, corrective measures should be taken, the System should be improved, and the recurrence should be prevented. The System would be a burden to the company, but it can limit directors’ liability. Therefore the company needs to implement and operate the effective System.