이사의 책임과 경영판단의 원칙에 관한 연구

Abstract

Criticism against insolvent operation of the management raised due to the Asian Financial Crisis led to the trend of reinforcing the management's responsibility and actively pursuing the question of directors' legal responsibility. This trend has a positive effect on the prevention of directors' illegal action under the Commercial Law. However, if an action taken by a director as part of the company's operation fails to match the expectation and causes loss to the company and the company accuses the director of his or her responsibility by strictly applying the criteria regarding directors' duty under the Commercial Law, it will severely affect the role of directors limiting their creative and vigorous activities. Consequently, in order to address concerns regarding an excessive accusation and encourage directors to actively do their role, the business judgment rule under the American and German laws is necessary to be applied. When the business judgment rule is codified and applied, the following matters should be considered: Firstly, when a director considers a hostile M&A attempt as being harmful to the company and shareholders and decides to take a defensive measure, his or her decision is part of normal operation and so considering the long-term interest of shareholders, the business judgment rule must be applied to the decision of the director who took a defensive measure. Secondly, even though some people insist that the business judgment rule must be applied to executive officers when the executive officer system is introduced in the Commercial Law of Korea, the decision whether to apply the rule to them should not be based simply on the fact that their position is correspondent with that of directors, but preconditions and logical reasons for applying the rule to executive officers must be reviewed in advance.