내부통제시스템의 적정성과 실효성에 대한 대표이사의 의무와 책임 - 대법원 2021. 11. 11. 선고 2017다222368 판결의 분석을 중심으로 -

Abstract

The Supreme Court November 11. 2021. Sentencing 2017Da222368(Hereafter, this case) requires the representative director to compensate for damages caused by liability under the Monopoly Regulation And Fair Trade Act on the grounds of violation of representative director's duty to monitor, specifically the establishment and operation of Internal Control Systems. While analyzing this case, I point out that matters concerning the representative director's responsibility to secure “the Adequacy and Effectiveness of the Internal Control System” are at the heart of this case. The Supreme Court's decision to establish and effectively operate an Internal Control System with appropriate size and content that suits the individuality of companies confirms that Internal Control System is a major topic in corporate law regarding directors' responsibilities. In this article, I also emphasize that the establishment and operation of an Internal Control System can be evaluated as the content of Duty of Care beyond the fulfillment of the representative director's Duty of Oversight. In addition, it dealt with issues related to Internal Control of the same nature as this case in cases such as the recent case of Samsung Group Vice Chairman Lee and the cancellation of administrative measure by the representative director of a financial institution. “The Adequacy and Effectiveness of such Internal Control Systems” are inevitably essential criteria for determining whether management responsible for the establishment and operation of these systems violates their duties. In this article, in the application of the legal principles of the Internal Control System, the difference between the violation of representative director's monitoring obligation and the violation of the outside director's monitoring obligation was reviewed. Although the lower court, this paper also deals with the law of determining the effectiveness of the Internal Control System, which was dealt with in corporate crime cases of corporate owners and violations of the financial institution's obligation to establish Internal Control Standards.