완전자회사의 이사의 선관주의의무

Abstract

Many of these corporation are or were comprised of scores of subsidiaries in the Korea. Commonly, subsidiary corporations have boards of directors that overlap with or are identical to their parent corporation's board of directors. Fiduciary duty law on corporate Law in the Korea generally direct each of these varies boards of directors to act in the best interests of the corporation and its Shareholders. For a director of a wholly owned subsidiary, this fiduciary mandate is clear when the subsidiary is solvent act in the best interest of the parent corporation, which is both the only party that can sue derivatively on behalf of the subsidiary corporation and is also the subsidiary's only shareholder. When a subsidiary corporation becomes insolvent, most courts grant creditors of the subsidiary corporation standing to sue on behalf of the subsidiary for breach of fiduciary duty in the United States of America. The Delaware Supreme Court case of Anadarko Petroleum Corp. v. Panhandle Eastern Corp. has been heavily cited over the years for issue involving fiduciary duties between parent corporation and their wholly owned subsidiaries. In Anardako, a former wholly owned subsidiary alleged that its former parent corporation and certain directors breached fiduciary duties to the subsidiary by modifying contacts between the companies prior to spin-off the subsidiary. In holding that the parent corporation owed no duty to perspective stockholders of the subsidiary, the Delaware Supreme Court wrote, in dicta, that “in parent and wholly-owned subsidiary context, the director of the subsidiary are obligated only to manage the affairs of the subsidiary in the best interests of the parent and its shareholder.”The Delaware Supreme Court, in the 2007 cases of North American Catholic Educational Programming Foundation, Inc. v. Gheewalla, provide a substantial amount of clarity regarding the timing of creditor right under fiduciary duty law. In Gheewalla, the court made clear that “no direct claim for breach of fiduciary duties may be asserted by creditors of a solvent corporation that is operating in the zone of insolvency”, The court also explained that, in the zone insolvency, the directors' fiduciary duties still run to the corporation and its shareholders. The vast majority of jurisdiction outside of Delaware to consider the issue after 2007 have followed Gheewalla's pronouncement that directors' fiduciary duties continue to run to the corporation and its shareholders through the “zone” or “vicinity” of insolvency. This article argues that interpret directors' fiduciary duty of the §382 ② on corporate law in the Korea, wholly-owned subsidiary in solvency the same as in Anadarko language the director of the subsidiary are obligated only to manage the affairs of the subsidiary in the best interests of the parent and its shareholder, And interpret wholly-owned subsidiary in insolvency the same as in Gheewalla, directors' fiduciary duties continue to run to the corporation and its shareholders through the “zone” or "vicinity" of insolvency. However, upon insolvency, creditors of the subsidiary are given standing to sue for breaches of duties to the corporation.