이사의 책임제한

Abstract

It is nowadays usual for every jurisdiction to limit the liability of directors to his or her company for a certain amount. The Delaware General Corporation Act permits in § 102 (b), (7) every corporation to limit the liability by adopting a charter provision. The japanese Company Act 2006 permits also the limitation of director’s liability to the corporation through special resolution of shareholder meeting, through board approval by charter provision or by contract to limit the liability between company and outside directors(ss.424-428). The German Stock Corporation Act (s. 93) permits also the limitation of the director’s liability through a special resolution of shareholder meeting. The english law prohibits some charter provision limiting or elimiting the director’s liability. It renders such a clause in a company charter void. The courts there have power to decide the problem. They have a discretion to relieve against liability for negligence, default, breach of duty or breach of trust, provided that it appears to the court that the director has acted honestly and reasonably and that, having regard to all the circumstances, he or she ought to be excused. Korean Commercial Code has 2011 newly implemented a provision, which enables to limit the director’s liability in s. 400 (2). The author emphasizes followings. At first, he interprets the legal characteristic of the charter provision following the s. 400(2) Korean Commercial Code (following as ‘KCC’ abbreviated) as voluntary. As second, he points out that there should be also some exceptions to the minimum liability clause at sec. 400 (2) KCC as far as the concrete situation demands. Third problem was the legal handling on gross negligence. It should be remembered that the Delaware General Corporation Act permits a limitation of liability also in a situation, in which the director acted gross negliegently. The fourth problem is related to the legal structure of the effect of s. 399 KCC, the joint and several liability of the directors. The author prefers to the judicial development regarding s. 400 (2), that is to say that the revision of s. 399 KCC to the divided liability is not so advisable. At last the author points out that the realization of equity and appropriateness is a matter of paramount importance regarding the limitation of director’s liability.