經營判斷의 原則의 새로운 動向과 韓國商法受用論
A new trend of the business judgment rule and codification of the rule in K.C.C.
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The business judgement rule is expressed as a specific application of directorial standard of conduct to the situation where a business decision is made by disinterested and independent directors on an informed basis and with a good faith that the decision will benefit the corporation. This rule has been developed as a means of protection from the liabilities for the demage caused by directors. The business decision frequently contains unpredictable risks and thus this rule provides directors of the board discretion they need in formulating dynamic and effective company policy without the fear of judicial review of their decisions. And the rule keeps courts from becoming enmeshed in complex corporate decision, a task that courts are admittedly ill-equipped to handle, since directors are in most cases more qualified to make business decision than judge. Recently, the business judgement rule has been involved in some cases brought against directors of corporations that face unwanted takeover attempts and adopt defensive strategies designed to defeat the hostile takeover. And in the derivative suit, the application of this rule has been controversial. Also the rationale underlying the business judgement rule is recognized in Korea. So it is needed to codify with prudence the business judgement rule in the Korean Commercial Code.
Abstract
The business judgement rule is expressed as a specific application of directorial standard of conduct to the situation where a business decision is made by disinterested and independent directors on an informed basis and with a good faith that the decision will benefit the corporation. This rule has been developed as a means of protection from the liabilities for the demage caused by directors. The business decision frequently contains unpredictable risks and thus this rule provides directors of the board discretion they need in formulating dynamic and effective company policy without the fear of judicial review of their decisions. And the rule keeps courts from becoming enmeshed in complex corporate decision, a task that courts are admittedly ill-equipped to handle, since directors are in most cases more qualified to make business decision than judge. Recently, the business judgement rule has been involved in some cases brought against directors of corporations that face unwanted takeover attempts and adopt defensive strategies designed to defeat the hostile takeover. And in the derivative suit, the application of this rule has been controversial. Also the rationale underlying the business judgement rule is recognized in Korea. So it is needed to codify with prudence the business judgement rule in the Korean Commercial Code.
참고문헌 (13)
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