비영리법인에 있어서 이사의 선관주의의무 - 사립학교법인 이사의 취임승인취소 등에 나타난 사례를 중심으로 -

Abstract

This article addresses what constitutes directors’ duty of care in nonprofit corporations governed by the Civil Code. In particular, this article focuses on the directors of private schools, to which the Private School Act is applied. Under the Civil Code, nonprofit directors shall execute their duties in good faith as delegates of nonprofit corporations. For this reason, directors of private schools shall handle delegated affairs in accordance with the purpose of the corporations as well as the nature of the delegated affairs. In determining what constitutes directors’ duty of care, this article first establishes that a private school corporation is an incorporated foundation and analyzes the director’s duty of care in terms of achieving the purpose of and managing the property of the foundation. Secondly, this article analyzes the director’s duty of care in relation to grounds for revocation of a director’s assumption of office as listed in the Private School Act — typical grounds for revocation include fraudulent accounting and violation of the Private School Act. In particular, in contrast to the directors who actively go against their duty of care, this article considers a number of factors when determining whether the directors who did not actively participate in such acts also violate their duty to observe. Finally, the public nature of education and independence of private schools is taken into account when determining a director’s violation of duty of care. Further research is required for the topic of legislation necessary for bringing civil liability action against directors for violation of duty of care.