케어마크 청구에서의 미션 크리티컬 - 이사의 감시의무 영역의 범위와 한계 -

What is noteworthy of the U.S. Caremark claim cases after 2019 is the emergence of the term ʻmission criticalʼ. ʻMission Criticalʼ is also a technical term defined as ʻʻan essential element for system operationsʼʼ in the field of information and communication (IT). This is closely related to the discussion of ʻʻwhether corporate directorsʼ oversight liabilities can be extended to the ESG risks, where relevant laws and regulations have not yet been fully established.ʼʼ The following trends can be identified from the recent Caremark cases. First, it is clear that dismissal of oversight claims is less likely where the underlying problem relates to ʻmission criticalʼ. Second, courts have been more dismiss complaints where it is clear that the board took some action to remedy the issue, even if imperfect or delayed, as opposed to cases where the board appeared to take no action. In Construction Industry Laborers Pension Fund v. Bingle, the Court noted that Caremark claims have recently ʻʻbloomed like dandelions after a warm spring rain.ʼʼ However, the Court also emphasized that such claims remain among the most difficult claims to cause to clear a motion to dismiss, because the lack of oversight pled must be so extreme and this entails a particularized pleading of scienter, demonstrating bad faith. Korean Supreme Court has recognized and applied U.S. Caremark test to directorsʼs oversight liability cases, However, even with negligence or gross negligence, the Supreme Court grants the plaintiffsʼ damage claims for corporate directorsʼ oversight failures under Article 399(1) of the Commercial Act, which is different from U.S. courts. It is questionable whether it would be desirable for Korean courts to apply the U.S. Caremark standards while extending the limits of directorsʼ oversight liability to a greater extent than those in the U.S. In my opinion, that issue requires serious consideration by scholars and practitioners.