사외이사의 감시의무와 내부통제시스템 구축의무 — 대법원 2022. 5. 12. 선고 2021다279347 판결을 중심으로 —

Abstract

In May 2022, the Supreme Court ruling on damages compensation lawsuits against the directors of Daewoo E&C for violation of their duty of monitoring was finalized. According to the logic of precedents related to the monitoring duty of directors, the responsibility of the directors for the violation of the monitoring duty was recognized. Above all, the meaning of this ruling is that it recognized the duty of monitoring for outside directors as well as the establishment and operation of the internal control system. After the Supreme Court ruling in 2008 that recognized the obligation to establish an internal control system, everyone agreed on imposing responsibility for the establishment and proper operation of the internal control system on the CEO. However, as the Supreme Court in the past recognized the duty of monitoring of directors only when there was reason to suspect that the execution of duties by other directors, etc. was unlawful, the question of whether to recognize the respon- sibility of outside directors for the establishment and operation of the internal control system is negated. There were many opinions. Contrary to the discussions in academia, this Supreme Court decision is expected to be controversial because it recognizes the duty to establish and properly operate an internal control system in the case of outside directors. First of all, there is a question as to whether it is justifiable to bear the same responsibilities despite the difference in job authority between the two, in that, unlike the representative director or the executive director, the outside director is not engaged in company affairs on a regular basis. Second, the reality is that outside directors participate in the company's business execution through exchange of opinions and resolutions through a meeting body called the board of directors. If so, it is not realistic to require outside directors to actively monitor the company's specific work. This judgment is expected to have a significant impact on the composition and operation of the board of directors, but it is judged that predictability is not secured in light of the content and logic of the judgment. Supplementary work on this is requested in the future.