미국 회사법상 이사의 감시의무 － 대관 2008. 9. 11. 2006 다 68636의 평석을 겸하여 －

Abstract

In recent days, the corporate lawyers in U. S. face after the stream of financial crisis and bancruptcy filing of GM and Chrysler a hot discussion on the corporate director's duty of oversight. The Delaware Chancery Court released February of this year two important cases regarding the corporate directors’ duty of oversight, namely the AIG case and the Citigroup case. The Delaware Chancery Court distinguished the latter case from the former. The Corporate Directors' Duty of oversight belongs to a fiduciary duty, namely to the duty of care. The Delaware Law distinguished between ill-advised or negligent board decision and unconsidered board inaction, namely between conduct consitituting (1) " a board decision that results in a loss because that decision was ill-advised or negligent" and (2) "an unconsidered failure of the board to act in circumstances in which due attention would, arguably, have prevented the loss." The above mentioned and commented case of Korean Supreme Court (2006 Da 68636) emphasizes, as in the cases of the Delaware Chancery and Supreme Court, the 'duty to establish a information and report system' in a korean public company. If the directors perform this duty with completion, a plaintiff shareholder can hardly win a ‘Caremark-Claim’ litigation in any Korean Court as in the U.S. and Japan. It is characteristic that the convergence in corporate governance prevails nowadays worldwide. We can watch such a phenomenon especially in the director's fiduciary duty of a public company in U.S., Japan and Korea. Regarding the fiduciary duty of corporate directors and officers, a unified case law seems almost already to be established. Following this streams, the Korean Court should develop a sophisticated case law for the director's the duty of oversight in a public business organization.