상법 제401조의2에 따른 업무집행관여자의 책임의 법적 성질 - 대법원 2020다236848 판결(2023. 10. 26.)의 평석을 겸하여 -

In Korean enterprises, it is common for controlling shareholders to be deeply involved in the management of the company without holding any formal legal status. Instead, they rely on their actual influential power within the company. Even when their involvement leads to losses for the company, the company cannot claim liability against them due to their lack of official legal status. To address this issue, the Commercial Act introduced Section 401-2 in 1998, which imposes the same liability on controlling shareholders involved in corporate management as it does on directors. Since the introduction of this rule, the legal nature of this liability has been a topic of debate. The majority view is that this liability is contractual, while a minority argues that it is legally constructed liability. Recent case law supports the majority position. The majorityʼs position is based on a literal interpretation of the provision (Section 401-1). The author demonstrates the structural contradictions within the legal text of Section 401-1 and highlights the unreasonable outcomes of a literal interpretation. Additionally, the author analyzes the legal nature of controlling shareholdersʼ liability for the involvement in corporate management, advocating for the theory of legally constructed liability.