리스크 관리에 대한 이사의 감독책임에 관한 연구 -미국의 Countrywide Financial Corporation 주주대표소송 판결을 중심으로-

Abstract

In America the financial crisis of 2008 revealed excessive risk-taking issues and risk management failures in financial institutions. Furthermore, most failures of financial institutions resulted from excessive risk-taking issues and risk management failures. Shareholder losses in financial institutions are attributable to the violation of duty to monitor in respect of risk management failures. Therefore, a lot of shareholder derivative suits are closely related to the analysis of oversight failures by the board of directors. By the way, on the basis of the facts that the failed financial institutions are the Delaware corporations, a director’s oversight liability should be analyzed under the Delaware laws. The Countrywide Financial Corporation Derivative Litigation was judged in the federal court. This derivative suit closely implicated the violation of duty to monitor in respect of risk management failures. Actually, the duty to monitor is related to the occurrence of harm to the corporation arising from wrongdoing, illegality, or other harmful activities. A director is, therefore, obliged to monitor or oversee whether or not officers or employees commit wrongdoing or violate laws and regulations. In addition, the board of directors should oversee or monitor risk management. The board of directors should have a responsibility to establish internal control system in the context of oversight according to the Caremark duty under the Delaware laws. Generally speaking, the Caremark duty has been long under the scope of a duty of care. The Delaware Supreme Court’ recent decision in Stone v. Ritter is, however, greatly significant in some respects. First, the Delaware Supreme Court clearly denied the argument that the obligation to act in good faith should establish an independent fiduciary duty. In addition, the salient decision is that the duty of good faith is a subsidiary element of the fundamental duty of loyalty. Second, the seminal effect of the Stone case is the fact that the duty of loyalty includes the duty to monitor. Furthermore, the duty of loyalty is not limited to the cases involving a financial conflict of interest. The federal court in the Countrywide Financial Corporation Derivative Litigation made a decision that the directors in the Countrywide Financial Corporation acted with scienter and violated the duty to monitor. First of all, the accounts of numerous confidential witnesses greatly contributed to supporting Plaintiff’s arguments in this derivative suit. In conclusion, it is necessary to accept the duty to monitor in respect of risk management. Furthermore, financial institution director’s duty to monitor should be emphasized in that risk management is a fundamental part of business of financial institutions.