도산기업과 경영자 책임

Abstract

Directors of corporation are principally liable only to the corporation, exceptionally, however, directors are liable to the creditors and shareholders of the corporation only if they are willfully or gross negligently breach fiduciary duties of care and loyalty to the corporation. It is upon insolvency or the vicinity of insolvency that the issues of liabilities of directors is raised as the power of management of corporations is transferred from a corporate board of directors to the court appointed trustee. After rendering an order for relief, the bankruptcy court can investigate the range and scope of directors' liabilities with speedy and simple proceedings. This new investigation proceedings were applied only to the corporate reorganization proceedings under the old Corporate Reorganization Act, but under the newly enacted Debtor Rehabilitation and Bankruptcy Act the investigation proceedings are applied to the liquidation proceedings as well. When an action filed by any creditors pursuant to the provisions of Article 404 or 406 of the Civil Act is pending in the court at the time that the reorganization proceedings or liquidation proceedings are begun, the litigation procedures therefore shall be suspended until the litigation procedures are taken over by the trustee or the reorganization proceedings or liquidation proceedings are completed. When a corporation is declared bankrupt by the bankruptcy court, there is a dispute whether shareholders can file a derivative suit against directors and auditors. While the U.S. Bankruptcy Code allows to file, the Supreme Court of Korea and majority opinion of scholars hold opposite position. While a trustee of liquidation proceedings can be exempt from limited liability according to the Article 365 of the Debtor Rehabilitation and Bankruptcy Act, a trustee appointed under the reorganization proceedings are still liable after a case is closed. It is necessary to lessen the liability of a trustee of reorganization proceedings to the same extent of liquidation proceedings in order for a trustee to manage the debtor corporation more actively.