경영판단의 원칙에 관한 일본 판례의 검토

Abstract

Business judgement rule means that the court recognize management of the company as the sole authority of the Board of Directors, because the judgment of the court for the internal management of the company could be some sort of interference. This principle developed and created by precedent law of the United States, it can be seen that it is not directly reduce to responsible of director, but exempt from the liability of directors by relieve the directors' duty of care. Also court of United States is applied to this principle, only when the need for protect of the interests of the company is the greater. This principle is not specified in Korea, the decision of the Supreme Court are going to establish the position on this principle. The Supreme Court granted to a wide range of discretion related to the enforcement of duties, and recognized this principle as way to deny responsibility for damages to the conduct of the directors complied with the duty of care. Japan also does not specify directly, define the responsibilities of the director through the individual provisions of the Companies Act. Japanese court had been recognized widely responsibilities of breach of duty of care by a strict interpretation to the director's duty of care in the past. However there is a problem in the judgment of this court, because it did not take into account the inherent peculiarities in the business judgment of the directors. Therefore Japanese court construed to relieve the duty of care by changing the position of past, for the purpose of promoting the a drastic business judgment of directors recently. Also there has been a lively discussion on the introduction of this principle from the past, but there has been still the conflict of view in Commercial Code academics in Japanese. This principle are recognized generally as the court does not intervene in the business judgment of directors in Law of the United States. But Japan does not take the same attitude toward the United States. Rather, Japan has taken the view that respect the business judgment of the directors therein and admitted to the examination of the court in principle. Therefore, I would like to debate the validity after examining the doctrine and the relevant case law and divided into the four opinion that being raised with respect to this principle in Japan in this paper.