이사의 책임과 경영판단의원칙에 대한 고찰 - 이사의 충실의무에 대한 상법개정에 관한 논쟁에 기인하여 -

Recently, the issues of “resolving for the Korea Discount”, protecting, and “strengthening for the minority of shareholders” have become a hot potato in academia related to our commercial law. In particular, this revision of the Commercial Act was specified the following: First of all, “For company” was changed to “For company or shareholder”. Second, The director’s duty of care was stipulated in the Commercial Act. Third, The director’s duty protecting interests for all shareholders was stipulated. At the same time, the duty refrained from infringing on the interests or rights for the specific shareholders was established. Fourth, The name of outside directors was changed to independent directors, thereby expanding for the number of independent directors and restricting significantly from the major shareholders’ voting rights in the appointment of audit committee members. Fifth, Measures were accomplished to intensify the management monitoring rights for the minority shareholders by broadening for virtual shareholder meetings. Although this type of the revised legislation has been announced, if it is implemented, it is expected to bring about significant changes to our corporate management styles and governance structures. Ultimately, the persistent criticisms on which the increased difficulties of defending management rights could discourage companies from making proactive and long-term investment decisions imply serious problems in the amendment. It has been concretizing as a criticism for this revision that harms the stability of the company under the pretext of protecting for the minority of shareholders, which is rather making easier for foreign capitals or private equity funds to intervene in management rights. And, It can’t be overlooked for the concerns, which directors become passive in the management of the company due to burdens of excessive legal responsibilities by expanding scopes of directors’ fiduciary duties. Certainly, there are some supportive views from the economic and legal academia circles that this amendment secures checks and balances of the strengthening for the minority shareholders’ rights and mismanagement by major shareholders though. It is necessary for the ongoing attentions and discussions on this matter, which the majority of legal scholars and economic practitioners are greatly concerned about the negative effects of increased legal risks and declines in management activities. Based on this phenomenon, this study explored and organized for the various alternatives proposes the following: First, it is necessary to establish clear standards for judging violations of directors' duty of loyalty. Second, it has been presenting for the need to introduce the systems that will practically reduce the responsibilities of directors. Third, there is a need to reexamine for the responsibilities of directors, outside directors (independent directors) and etc., in charge of oversight functions. Fourth, it is necessary to find ways to secure directors’ expertise in corporate management. Over all, it is paramount to create a legal environment for rational corporate activities that can simultaneously ensure the efficiency and soundness of corporate managements. This study concludes that there is a need to prioritize for codifying the principles of directors’ business judgment which exist under positive law implemented as a mitigation measure against the strengthened responsibilities of directors in our legal system.