대표이사 책임범위에 관한 최근 판례동향 -대법원 2010도6490 판결을 중심으로-

Abstract

Recently, one of the hotly debated issues in Corporate Law which has been dealt by Korean Supreme Court is the responsibilities of the Representative Director(in Korea, the Representative Director, the Chair of Board amounts to the CEO in U.S. Corporations, hereinafter ‘CEO’). Additional issue with this is whether CEO can be charged with malfeasance in office in criminal perspectives. The reason of the increasing phenomenon regarding this kind of corporate action were mainly based on the growth of the modern corporations in our economy. Generally, the CEO has a wide range of corporate power & authorities to make a day to day business decisions as well as to manage her corporation by doing actual activities with third party. Korean Commercial Code has several provisions regarding the power and legal responsibilities of Corporate CEO. The legal rule is that the result of the CEO’s activities with third party should bind her corporation, but there are some exceptions in order to protect the corporation’s and its shareholder’s interests. One of the important exception among these is the case when the CEO abuses her representative power which is set by Law, corporate articles, and bylaws. In particular, however, the problem might be serious when the CEO exercise her power within the scope of her legal authority, but for the purposes of her own interests or other’s. In this case, the third party who did a business with the CEO could not figure out the CEO’s misuse of her authorities, so the result of the abusing activity should bind her corporation in order to protect her counterparty. However, Korean Supreme Court has denied the corporation’s liabilities in this case. From the perspectives to protect the reliability in business, in other words, to protect third party’s interests, I suggest the Korean Supreme Court to change its long-term position by removing the negligence element in deciding the invalidity of the transaction, which can also charge the CEO with malfeasance in criminal cases. Additionally, the definition of monetary ‘damages’ in malfeasance in office should include damages derived from the depreciation of the corporation’s market share price, shareholders’ monetary damages from the disclosure of the bad news as well as the infringement of corporation’s trade name which also can be regarded as property rights.