이사 해임과 손해배상청구: 한국과 일본의 법리 비교를 중심으로

A company may dismiss a director through a special resolution of the general meeting of shareholders, and such dismissal does not necessarily require a specific cause. In response, a dismissed director may claim damages or monetary compensation from the company based on the absence of justifiable grounds for the dismissal. The first approach involves claiming an agreed sum or predetermined damages stipulated in an employment contract, regardless of its title, upon dismissal before the expiration of the term. This method is grounded in a contractual claim for performance. The second approach, under Article 385(1) of the Korean Commercial Code, involves claiming compensation for the remaining term of office on the basis that the dismissal lacked justifiable grounds. In this case, if justifiable grounds for dismissal exist, the company does not incur additional liability merely because the general meeting of shareholders resolved to dismiss the director. However, under prevailing judicial precedents, contractual claims based on the first approach are practically infeasible, as Article 388 of the Korean Commercial Code deems such agreements invalid if the director’s remuneration is not stipulated in the articles of incorporation or approved by the general meeting of shareholders. Consequently, most claims are pursued under the second approach, as claims for damages against the company. This paper examines the dismissal of directors by resolution of the general meeting of shareholders and the legal framework enabling directors to claim damages from the company when dismissed without justifiable grounds. By analyzing the legal principles and precedents of Korea and Japan, this study identifies similarities in the legislative intent, statutory structure, and interpretive theories of both jurisdictions, while also highlighting key differences. In particular, this paper seeks to contribute to improving the interpretive issues in Korean law. First, it is suggested that the standard for determining “justifiable grounds” for dismissal should be relaxed compared to current practice. Additionally, the damages awarded to a director should not be uniformly equated with the remuneration for the remaining term but rather be normatively assessed. Second, the burden of proof for the existence of “justifiable grounds,” which serves as a normative criterion for exempting the company from liability, should rest with the company asserting such grounds, rather than the dismissed director. Finally, this paper addresses the temporal scope for establishing justifiable grounds, the necessity of subjective recognition versus objective existence of such circumstances, and whether analogous application should extend to cases with similar effects to dismissal, such as amendments to the articles of incorporation shortening the director’s term during their tenure.