경영판단원칙의 도입 필요성과 입법방향에 대한 제언

A series of recent amendments to the Commercial Act herald significant changes to corporate governance, including the obligation of fiduciary duty to shareholders for directors, separate election of audit committee members, and mandatory cumulative voting. While these amendments are recognized as necessary for protecting minority shareholders and improving governance, the introduction of excessive regulations poses risks of disrupting capital markets and excessively increasing director liability. In particular, concerns over the potential for excessive lawsuits to impose director liability and the intensifying regulation of directors' management practices have resurfaced the need to codify the business judgment rule, which has evolved primarily from US case law. While this principle has been applied in some domestic cases for some time, its application remains limited. Recently, the need to establish a legal basis for the business judgment rule has been raised in Korea to ensure institutional stability. The recently proposed amendments to the Commercial Act are expected to provide an alternative, preventing unnecessary litigation and securing management autonomy by guaranteeing the independence and reasonable discretion of directors in their management decisions. However, to prevent the business judgment rule from functioning as an unconditional immunity mechanism that protects all directors' decisions, a meticulous legislative review of its detailed requirements and scope of application is necessary. This study examines the necessity of legislating the business judgment rule and analyzes the key provisions of the recently proposed amendments to the Commercial Act to suggest desirable legislative directions.