이사 감시의무⋅감독의무의 범위와 이행 -대상판결: 2008.9.11. 선고 2006다68636 판결-

Abstract

In this case the plaintiff purchased the bonds of D corporation, relying on the credit assessment about D corporation. which had been influenced by the window dressing settlement made by management. After D corporation was dishonored, the plaintiff sued president, executive directors and audit of D corporation for they breached the duty of director's oversight to other management and employees. The Supreme Court ruled that the director's duty of oversight might vary with the corporate scale, organization, type of business, regulation, business conditions and financial standing, and that in a highly divided and specialized corporation every director has the duty to build the system of rational information and report system and internal control system, and to see that it operate well. The decision is new one, the supreme Court presents new standard of judgement about the breach of oversight duty. Until this time the breach of oversight duty has been recognized when director take no action even he(or she) knows the fact of unlawful business management or there was a situation in such doubt. Through the new decision the standard of judgement has been changed to whether or not there be effort to build internal system etc. to prevent unlawful business management in a large corporation. To the decision some questions may be raised. First, non-executive director has the duty of building the systems, but he(or she) has no duty to see that they operate well, because he(or she) has difficulty in grasping concrete business management. Second, the Court dealt the issue of director's duty of oversight, however, there is also the issue of duty of controling management. I think a representative director has the oversight duty to the other representative director, but he(or she) has the control duty to the other executive director or employees who have lower post in work. In finding the breach of control duty it should be considered whether there would be the breach of Commercial Law, article of incorporated, and corporate rules and regulations.