지배주주 관여 거래와 경영판단의 원칙

The business judgment rule is significant because it serves as a limit to the legal liability of a director, allowing him to take the risks and make bold decisions for the sustainable growth of a company. In Korea, a controlling shareholder often pursues wrongful benefit, and the application of the business judgment rule to such controlling shareholder-involved transaction (“CSIT”) is important for the sustainable growth of the company. The business judgment rule has developed through case laws in both the U.S. and Korea, and it has a common goal of limiting a director's liability for breach of its duty of care by basically refraining from allowing non-expert courts to second-guess the business decision of a director who is an expert in management of company. In contrast, unlike the U.S., the business judgment rule is applied to the circumstances of conflict of interest, the presumptive effect of a director's business decision is not accepted, the reasonableness of the content of the business decision is required, and gross negligence is not distinguished in Korea. In the U.S., CSIT is generally subject to the entire fairness standard. However, the MFW standard applied the business judgment rule to going private subject to the approval of a special committee and a majority of minority shareholders. MFW standard extended to general CSIT in IRA Trust FBO Bobbie Ahmed. In Korea, the business judgment rule is applied on the same basis to non-controlling shareholder-involved transaction (“non-CSIT”) and CSIT. Considering that CSIT is more likely to lack fairness and infringe on the interests of minority shareholders, it is necessary for courts to distinguish between non-CSIT and CSIT and apply the business judgment rule differently. In applying the business judgment rule to non-CSIT, it is desirable to accept the presumptive effect but not to judge the content of a director's business decision. However, in the case of CSIT, the business judgment rule is applied, but the presumptive effect should not be accepted, and such transaction should be judged more strictly by considering the entire fairness. In this case, if the transaction includes procedures to protect the interests of minority shareholders, it is appropriate to accept the fairness of the transaction and judge the transaction on the same basis as non-CSIT. Applying the business judgment rule differently depending on whether a controlling shareholder is involved or not can have a positive effect on protecting minority shareholders and regulating the pursuit of wrongful benefit by a controlling shareholder at the company law level.