이사의 선관주의의무 위반 판단의 기준 - 대법원 2023. 3. 30. 선고 2019다280481 사건에 대하여 -

In March 2023, the Supreme Court pronounced a judgment about a case is dealt with the director's liability for damages incurred to the company in connection with the conclusion of a derivatives contract to defend the management rights of a corporate group with a cross-share holding structure. This case caused a lot of issues in corporate law. This study discusses about director's duty of care, duty of oversight and the problems when the court applies the business judgment principle. The court judged that some of the derivatives contracts in this case were entered into without sufficient review by the board of directors and constituted a violation of the duty of care by the directors. In judging whether the decision-making process of the business judgment principle, it seems that there was a mistake in judging only the decision-making process of the board of directors. The court controls the application of the principle of business judgment to limit the director's excessive discretion in the decision-making process or decision-making content in determining the director's violation of the duty of care. In large corporations, the board makes a final decision, but executives and experts with professional capabilities participate decision-making process. It is necessary to consider the above specific circumstances in applying the business judgment principle to determine whether a director has violated the duty of care. In this case, if the court judged by applying the duty to establish the internal control system - about directors' oversight duty at Caremark doctrine -, the court can reduce discretion when applying the business judgment principle. And it can also refrain from arbitrary judgment. When a corporation enters into a derivatives contract that can maximize the risk of loss, the directors examine whether the corporation has an internal control system and risk management policy. The directors can trust the internal control system and risk management policy as long as they are not clearly illegal or unreasonable. Even if a director has a conflict of interest with the company, unless there is a special circumstance that the conflict-of-interest handling plan outlined in the internal control system is clearly illegal or unreasonable, if the director has handled his or her business according to the internal control system, the director doesn't have responsibility for violations about the duty of care and monitoring. In this case, the court can judge this case sufficiently to determine whether a director has violated the duty of care according to previous Supreme Court's precedent related to the directors' duty to establish an internal control system. I hope that this study will be an opportunity to organize and develop the legal principles of the directors' duty of care and oversight duty and to examin the criteria for judging the violation of the duty of care by directors along with the commentary on the judgment.