이사 해임에 따른 회사의 손해배상책임 - 대법원 2023. 8. 31. 선고 2023다220639 판결 평석 -

The recent decision of the Supreme Court dated 31 August 2023 (2023Da220639, the "Subject Decision") determined that the legal nature of the liability for damages under Article 385(1) of the Korean Commercial Code(“KCC”) is statutory liability. It also held that in assessing the just cause for the removal of a director, all circumstances existing at the time of the general meeting's resolution to remove the director may be taken into account. Previous Supreme Court precedents only addressed the meaning of just cause or the timing of its assessment. However, the subject decision has precedential value as it clearly establishes that the scope of basic facts for determining just cause is not limited to the reasons for dismissal explicitly or implicitly considered in the shareholders' resolution. The recognition of special liability for damages for the removal of directors is the stance taken by Japanese and French legislation (whereas the US, UK and Germany approach the issue of liability for damages as a matter of breach of contract between the director and the company). Granting directors the right to special damages is a system designed to guarantee the independence of management in response to the shareholders' free right of dismissal. In this context, the court's decision, which considers the liability for damages under Article 385(1) of KCC as statutory liability, is appropriate. If it were considered as a breach of contract, it would be difficult to recognize the illegality, which is a factual requirement for a breach of contract, or the intention or negligence of the company, given that the shareholders' meeting exercised the exclusive power to dismiss directors. The decision that the scope of just cause for the dismissal of directors is not limited to the reasons considered at the time of the shareholders' resolution, but includes all objective facts existing at the time of the resolution, is also reasonable in light of the legislative intent of Article 385(1) of KCC. This is because the director's right to claim damages is granted to those directors who have trustworthy interests worthy of protection, and therefore there is no need to grant it to those who have committed breaches of duty. On the basis of this judgment, the following legislative improvements should be made: ① If the intention is to continue to apply the offsetting of profit to claim for damages under Article 385(1) of KCC, clear legal provisions should be established for this purpose; and ② Legislative improvements should be made to ensure that the control under Article 385(1) of KCC also applies to golden parachute, which, despite being in the nature of liquidated damages, is subject to the analogicial application of Article 388 of KCC on directors' remuneration.