미국 회사법상의 경영판단의 법칙 = The Business Judgment Rule under the American Corporation Law

다국어 초록 (Multilingual Abstract)

Under the American corporation law, the director has a duty to exercise proper care in managing the business and affairs of the corporation. This is called " a director's duty of care". The traditional standard of care is set forth in subsection 8.30 (a) of Revised Model Business Corp. Act(1984): "A director shall discahrge his duties as a director, including his duties as a member of a committee (1) in good faith; (2) with the care an ordinarily prudent person in a like position would exercise under similar circumstances; and (3) in a manner he reasonably belives to be in the best interests of the corporation." The American corporation law has, on the other hand, developed " the business judgment rule" to limit the directoral liability. In the landmark case of Aronson v. Lewis, 473 A.2d 805 (Del.1984) the Supreme Court of Delaware declared that the business judgment rule is " a presumption that in making a business decision the directors of a corporation acted on an informed basis, in good faith and in the honest belife that the action taken was in the best interest of the company. Absent an abuse of discretion, that judgment will be respected by the courts. The burden is on the party hallenging the decision to establish fact rebutting the presumption." The business judgment rule usually applies in a director's decosion making context. The Delaware Supreme Court held in Cede that " to rebut the rule, a shareholder plaintiff assumes the burden of providing evidence that directors, in reaching their challenged decisions, breached any one of the triads of their fiduciary duty - good faith, loyalty of due care... If a shareholder plantiff fails to meet this evidentiary burden, the business judgment rule attaches to protect corporate officers and directors and the decisions they make, and iur courts will not second-guess these business judgments... If the rule is rebutted, the burden shifts to the defendant directors, the rule is rebutted, the burden shifts to the defendant directors, the proponents of the challenged transaction, to prove to the trier of fact the "entire fairness" of the transaction to the shareholder plaintiff." Under Cede, due care is an element of business judgment rule, and due care is usually considered to be the same as informedness. If the plaintiff proves the director did not exercise due care (i.e., the director did not make an informed decision), business judgment rule will not apply. Even in such a case, if a director succeeds in proving the entire fairness, he will not be liable.

목차 (Table of Contents)

• Ⅰ. 서론
• Ⅱ. 경영판단의 법칙의 인정 근거
• Ⅲ. 경영판단의 법칙의 의의 - 추정으로서의 경영판단의 법칙
• Ⅳ. 경영판단의 법칙의 적용 요건
• Ⅴ. 경영판단의 법칙상의 추정이 깨어지지 않은 경우의 효과
• Ⅵ. 경영판단의 법칙상의 추정이 깨어진 경우의 효과
• Ⅶ. M&A 및 대표소송과 경영판단의 법칙
• Ⅷ. 결론