알고리즘 가격결정과 상법상 이사의 감시의무 : 미국 RealPage 사건과 한국 대법원 내부통제시스템 법리를 중심으로

With the acceleration of the Fourth Industrial Revolution, corporate pricing mechanisms are increasingly being replaced by Artificial Intelligence (AI) algorithms. While this technological advancement enhances market efficiency, it has simultaneously given rise to a new form of market disruption known as “Algorithmic Collusion,” where prices synchronize without explicit agreement. However, corporate executives often attempt to evade legal liability by citing the technical complexity and the “Black Box” nature of AI, arguing that they gave no specific instructions to collude. To address this “Gap of Liability,” this study aims to clarify the scope of directors' duty to monitor under the Korean Commercial Act in the context of the AI era. To this end, this paper conducts a comparative legal analysis of the U.S. In re RealPage case and the evolution of the Caremark doctrine under Delaware Corporate Law—specifically the Marchand and McDonald's rulings—alongside the Korean Supreme Court's recent landmark decision (2021Da279347), which solidified the duty to establish internal control systems. The analysis reveals that the U.S. Department of Justice (DOJ) views the delegation of pricing authority to a common algorithm as a “Hub-and-Spoke” conspiracy, and Delaware courts increasingly interpret AI-related risks as “mission critical,” thereby requiring active oversight. Similarly, the Korean Supreme Court has ruled that directors are not exempted from liability simply by being unaware of illegal acts; rather, they bear a legal obligation to establish and operate substantial internal control systems proportional to the company's size and risks. Based on these jurisprudential developments, this study argues that algorithmic collusion is a structural illegality, and thus, directors bear a “duty of means” to implement pre-verification procedures for algorithms and systems for post-detection of red flags. Directors cannot rely on technical ignorance as a defense; failure to fulfill these duties constitutes a breach of the duty of care, rendering them liable for damages under Article 399 of the Commercial Act. Finally, to ensure effective AI governance, this paper proposes legislative reforms, including expanding the scope of compliance officers to include algorithmic auditing, mandating Algorithmic Impact Assessments (AIA) for high-risk AI, and enforcing transparency through disclosure.