일본 회사법상 D&O보험조항의 신설과 해석에 관한 연구

Abstract

The Japanese Companies Act(Here by Act), which came into effect on March 1, 2021, established new provisions concerning procedures for entering into a contract of D&O insurance and procedures for company indemnification and its scope. In Japan, insurance policies in Japanese language was sold since 1993(English version sold from 1990). The D&O insurance coverage rate of listed companies for those products was very high. However, there was controversies because the legal basis for the company’s payment for insurance premiums and the scope of coverage was ambiguous. Recent amendment of the Act provided a legal basis for compensation and insurance premiums paid by companies. In Japan, establishment of the provisions are to specify incentives for executives. Although D&O insurance is liability insurance, the function of protecting the insured is indeed more robust than that of protecting the victim. However, various sources explain the new D&O insurance provisions in the Act is related to ESG, which have emerged as significant issue in Japanese society. In addition, information related to the insurance should be disclosed in reference documents for general shareholders’ meetings, business reports, etc. Disclosure is important because it provide information that will affect shareholder’s(especially institutional investors) investment decision. D&O provisions, along with the provisions of the Agreement limiting liability, Exemption from liability for damages to the stock company, and Partial exemption from liability already in the Company Act, provide a system for executives to be freed from legal liability. The revision of the law is meaningful it provided the basis for securing competent human resources, the essential condition for the revival of the Japanese economy. As the Act becomes more complete, several questions have been raised regarding the use of the insurance in detail. In particular, the amended Act made it mandatory for a Listed company, Etc. to have at least one outside director. Accordingly, the emergence of separate D&O insurance for outside directors is also being discussed. However, in Japan, there seems to be no in-depth discussion such as the monitoring function of D&O insurance. The paper would like to introduce the issues not addressed in previous studies. This paper explores what is being discussed in Japan by focusing on company law issues rather than insurance law discussions. In Korea, D&O insurance is operated in circumstances similar to the situations when Japan haven’t amended their Act yet. It is hoped that this study will serve as a reference for judging whether establishing the D&O insurance provision in the Commercial Act is necessary and anticipating problems arising when it is newly established.