파생상품계약 체결과 이사의 의무 - 대법원 2023. 3. 30. 선고 2019다280481 판결을 중심으로 -

The Supreme Court’s ruling in case 2019da280481 on March 30, 2023(hereafter, ‘the ruling’) held that the director violated the duty of care applying the business judgment rule. In this case, the company in question entered into derivative contracts which used stocks of the affiliated company as underlying assets to defend managerial rights of the affiliated company which belongs to the same corporate group. This paper reviewed the ruling as follows. First, it can’t be said that the requirement of the business judgment rule is clear, so there is need to make it clear. The ruling embodied the procedural requirement by enumerating the things which the director should examine in case of ‘① the subscription of new stocks of the affiliated company’, ‘② the acquisition of stocks of the affiliated company’, and ‘③ the conclusion of derivative contracts which use stocks of the affiliated company as underlying assets’. So it can be said that the ruling is meaningful in this respect. In particular, the ruling, with regard to in case of ‘② the acquisition of stocks of the affiliated company’, took into consideration the fact that in cross-shareholdings structure, acquisition of stocks of an affiliated company has a dual aspect of ‘ⓐ defending managerial rights of the affiliated company + ⓑ maintaining the corporate group through this and also maintaining the controlling shareholder’s control over the company or corporate group’. Second, the district court’s ruling and the appellate court’s ruling made a different decision about the existence of conflict of interest between Hyundai Elevator Co.(hereafter, ‘Hyundai Elevator’) and the director. And several commentaries also had different opinions about that. Due to the conclusion of derivative contracts, Hyundai Elevator was placed in danger to suffer a huge loss, whereas the defendant who was both the director and the controlling shareholder could obtain an advantage to maintain control of Hyundai Group by maintaining arrangement of cross-shareholdings of affiliates. So It is thought that the appellate court’s ruling which held that there existed conflict of interest between them is reasonable. Third, if there exists conflict of interest, then the application of the duty of loyalty matters. Considering the matter of an incentive, discussions of the academic world, recent judicial precedents, and legal principles of the US and Japan, it would be necessary to consider applying the duty of loyalty and a stricter standard of judicial review to the situation where there exists conflict of interest between the director and the corporation. Fourth, the ruling acknowledged the director's breach of duty of oversight, and in relation to this, it would be necessary to consider a measure to legislate the obligation to establish an internal control system so that companies can properly manage the risks of derivative contracts such as this case in advance.