이사의 충실의무에 관한 고찰 －미국 판례법을 중심으로－
Rethinking the Duty of Loyalty － With a focus on Delaware's Judicial Review －
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This article explores the duty of loyalty in corporate law. In the American law tradition, there were two main fiduciary duties: duty of care and duty of loyalty. There is a breach of the duty of loyalty where directors have conflicts of interest. In Stone v. Ritter, the Delaware Supreme Court held that directors may violate the duty of loyalty when they act in bad faith. As a result, directors may be disloyal though they have no conflicts of interest and even they intend to put their corporation's benefit on their top priority. In this regard, corporate directors must not only act in the best interests of their corporation and its shareholders, but they must also be honest with shareholders and comply with the law as well. Shortly after the financial crisis in 1997, Korea made a large-scale amendment to the corporate law by importing many legal system from the United States. Particularily, in 1998, Korea adopted a provision of the duty of loyalty by amending the Korea Commercial Code. Under Article 382-3 of the Korea Commercial Code, directors are required to perform their duties faithfully for the benefit of the company, while complying with positive law and the articles of incorporation. Under Article 382(2), the relationship between corporation and its directors is defined as delegation which is not exactly corresponding to trust relationship in U.S. law. Indeed, there has been hot debate on the relationship between the duty of care of a good manager and the duty of loyalty. The Korean Supreme Court held that the duty of loyalty is one of the aspect of the duty of care of a good manager, though the Korea Commercial Code Article 382-3. In sum, this article suggests that the duty of loyalty may be conceived of as being much broader than the duty to avoid acting pursuing personal financial interest. The duty of loyalty prohibits directors from acting for unlawful purposes, and requires directors to make a good faith effort to monitor the corporation's affairs and compliance with law as well.
Abstract
This article explores the duty of loyalty in corporate law. In the American law tradition, there were two main fiduciary duties: duty of care and duty of loyalty. There is a breach of the duty of loyalty where directors have conflicts of interest. In Stone v. Ritter, the Delaware Supreme Court held that directors may violate the duty of loyalty when they act in bad faith. As a result, directors may be disloyal though they have no conflicts of interest and even they intend to put their corporation's benefit on their top priority. In this regard, corporate directors must not only act in the best interests of their corporation and its shareholders, but they must also be honest with shareholders and comply with the law as well. Shortly after the financial crisis in 1997, Korea made a large-scale amendment to the corporate law by importing many legal system from the United States. Particularily, in 1998, Korea adopted a provision of the duty of loyalty by amending the Korea Commercial Code. Under Article 382-3 of the Korea Commercial Code, directors are required to perform their duties faithfully for the benefit of the company, while complying with positive law and the articles of incorporation. Under Article 382(2), the relationship between corporation and its directors is defined as delegation which is not exactly corresponding to trust relationship in U.S. law. Indeed, there has been hot debate on the relationship between the duty of care of a good manager and the duty of loyalty. The Korean Supreme Court held that the duty of loyalty is one of the aspect of the duty of care of a good manager, though the Korea Commercial Code Article 382-3. In sum, this article suggests that the duty of loyalty may be conceived of as being much broader than the duty to avoid acting pursuing personal financial interest. The duty of loyalty prohibits directors from acting for unlawful purposes, and requires directors to make a good faith effort to monitor the corporation's affairs and compliance with law as well.
참고문헌 (18)
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