ESG 친화형 기업지배구조와 경영판단원칙 - 선관주의의무를 중심으로 -

A big wave, which is called ESG, has been recently forming. This phenomenon implies that ESG is not optional anymore, but mandatory. As ESG legislation that originated with international soft laws transforms into national hard laws in the world, it seems barely possible for South Korea either to avoid the ESG wave. One distinct of the ESG wave requiring attention is that the ESG doesn’t show a composition of conflict between ‘shareholder v. stakeholder.’ Rather, it forms the conflict between all kinds of stakeholders in and outside of the business entity, including conflicts among shareholders. Owing to this phenomenon, the difficulties that a corporation’s directors, who have to direct company affairs linked to various and virtually irreconcilable interests of all stakeholders, bear are getting heavier and harder. This originates from that the complex interests create a legal structure that results in business failure for some stakeholders no matter what decision the directors make, and ESG legislation expands the actual scope of the fiduciary duty of the director, gradually eliminating the way to escape from liability for business failure. In this background, especially in Europe, where ESG legislation is active, the role of the business judgment rule is drawing attention as a measure of enhancing ESG value and protecting competent directors from uncertain business environments. In South Korea, compared to Europe, ESG legislation activities are relatively lagging, and a statutory business judgment rule has not been introduced yet. This legal structure contributes to double failures, both in making directors pursue ESG management and establishing bold and progressive business judgment. In this context, the author of this paper proposes to introduce statutory business judgment rule in the Commercial law of South Korea. On the purpose of incentivizing directors to pursue ESG management, the author also argues to introduce the duty of care in Commercial law separate from the Civil law of South Korea, and to prevent excessive immunity from management failure, proposes a way to expand the object of the duty of care toward the company’s employees, customers, creditors, the environment, and the communities it belongs to. Additionally, the author inspects the limits of ESG legislation, and, under the consideration of preventing premature lawmaking, provides the second-best plan, which is to establish soft law incentivizing directors to consider stakeholders’ interests when making a business decision in advance of introducing the statutory business judgment rule.