經營判斷의 原則의 適用範圍 - 미국의 사례를 중심으로 -

Abstract

The scope of the applicability of the Business Judgment Rule in the U.S. cases The business judgment rule is a helpful description of a basic principle applicable to business decisions by boards of directors. By the application of that rule, the decisions made by the board of directors upon reasonable information and with some rationality do not give rise to directorial liability for many types of actions that turn out badly from the standpoint of the corporation. The business judgment rule has been involved in numerous cases brought against directors of corporations that face unwanted takeover attempts and adopt defensive tactics designed to defeat the takeover. In the derivative litigation, the application of the business judgment rule has been controversial. In the U.S., it is normally recognized that the policies that have given rise to the application of the business judgment rule to directors apply with equal force to the actions of officers within their delegated discretionary authority. some commentator urged that the business judgment rule should not extend to non-director officers. But I ultimately disagree with his views. Recently Korean government tries to amend the Korean Commercial Code to introduce the advanced legal system. But the business judgment rule is not included in the amendment. A lot of Korean companies tries to be globalized in many aspects. Their management have discretionary authority in conducting domestic as well as international business. I think it is required to protect the management by the business judgment rule.