「경영판단의 원칙」의 재조명 = Review of the Business Judgment Rule

다국어 초록 (Multilingual Abstract)

Corporate management always accompanies risks to some extent. Given that directors' business decision results in losses to the corporation under ever-changing business environment and that a court easily approves that they would be liable for compensatory damages, they would have no option but to operate the corporation in a passive manner in order to avoid bearing liabilities caused by managerial failure. For corporate development and success, it is required that directors show their own entrepreneurial spirit as much as possible by participating in corporate management in an aggressive manner bearing risks to some extent, rather than sticking to seeking them to bear liabilities.
In this perspective, in the U.S.A., discussion has been held over the business judgment rule under theories and precedents since long time ago. There has also been much discussion over the business judgment rule in Korea since about 15 years ago, but, its concept and direction of operation have not been clearly established yet due to earlier handling of other issues.
If the business judgment rule is introduced, directors of a corporation in Korea will not be liable for their business decision on an informed basis andin the honest belief that their actions are in the corporation's best interest. They have a fiduciary duty having a characteristic of abstract slight negligence. In comparing with the standard (determining the level of negligence) required in the U.S.A., the level of their liabilities may be much stricter. Thus, it would be proper to apply the business judgment rule for business decision by the directors bearing strict duty of care in Korea.
In this thesis, I have first reviewed general details of the business judgment rule, then, the trend of precedents made by the Korean Supreme Court, pertaining to the business judgment rule, and finally, would like to propose enactment of new provisions as to the business judgment rule under the Korean Commercial Act.

참고문헌 (Reference)

1 양동석, "회사법상의 특별배임죄" 한국기업법학회 28 (28): 187-209, 2014

2 경익수, "현대상사법논집-지석 김인제박사 정년기념논문집" 두남 1997

3 강대섭, "이사의 책임과 경영판단의 원칙" 창원대학교 7 : 2000

4 최준선, "상법상 특별배임죄규정의 개정방향" 한국경제법학회 11 (11): 89-122, 2012

5 손창일, "미국 회사법상 적대적 M&A 상황에서의 강화된 경영판단의 원칙-델라웨어 州 회사법을 중심으로 -" 한국상사판례학회 25 (25): 381-420, 2012

6 최완진, "기업지배구조법강의" 한국외국어대학교 출판부 2011

7 권재열, "경영판단의 원칙의 도입여부를 다시 논함" 한국상사법학회 19 (19): 2000

8 이영봉, "경영판단의 법칙의 수용에 관한 검토" 한국상사법학회 19 (19): 2000

9 권재열, "경영판단 원칙의 도입여부에 관한 비판적 검토" 한국비교사법학회 6 (6): 1999

10 Dennis J. Block, "The Business Judgement Rule: Fiduciary Duties of Corporate Directors" Prentice Hall Law & Business 1993

11 Babatunde M. Animashaun, "The Business Judgement Rule: Fiduciary Duties and Liabilities of Corporate Directors" 16 : 1989

12 Patrick J. Ryan, "Strange Bedfellows: Corporate Fiduciaries and the General Law Compliance Obligation in Section 2.01(a) of The American Law Institute's Principle of Corporate Governance" 66 : 1991

13 Patrick J. Ryan, "Strange Bedfellows: Corporate Fiduciaries and the General Law Compliance Obligation in Section 2.01(a) of The American Law Institute's Principle of Corporate Governance" 66 : 1991

14 Marcel Kahan, "Paramount or Paradox: The Delaware Supreme Court's Takeover Jurisprudence" 1994

15 Harry G. Henn, "Laws of Corporations and Other Business Enterprise" West Publishing Co. 1983

16 Charles M. Elson, "Fairness Opinion: Are They Fair or Should We Care?" 53 : 1992

17 Regina A. Iorii, "Defensive Strategies and the Business Judgement Rule: Does Almost Anything Go in Delaware" 11 : 1986

18 Steven G. Bradbury, "Corporate Auctions and Director's Fiduciary Duties: A Third-Generation Business Judgement Rule" 87 : 1-, 1988