이사회 결의에 찬성 또는 기권한 이사의 책임- 대법원 2019.5.16. 선고 2016다260455판결을 중심으로 -

Abstract

The Supreme Court's 2016da260455 what is the damages case between Kangwonland Co. and its directors, have three issues. It includes whether it is between the major shareholder and company’s self-dealing, director's violation of the duty of care. And one more, it may be asked whether board member's abstention is presumption of approval or not. First, does 15 billion won donation to Taebaek City constitute a self-dealing? The District court held that, under a joint venture contract, Taebaek City is major stockholder because of its right to appoint a director. But the Appeal Court denied it, but the Supreme Court has not argued about it. Under the article 8of542(2) of Commercial Act, de facto influence means that major stockholder has any real influence over directors about the decisions of key management matters. Second, do Kangwonland Co.'s directors in favor of the board's resolution to donate 15 billion won to Taebaek City breach a duty of care? Directors are expected to exercise care in the board’s resolution. By imposing these demands, the duty of care both encourages and enforces responsible corporate management. In this case, because it is hard to see that there was sufficient review, the Supreme Court held the directors breached the duty of care. Third, In Article 399 Paragraph 3 of Commercial Act, the directors who is present at a meeting of the board, when corporate action is taken is deemed to have assented to the action taken, unless his dissent from the action taken is entered in the minutes of the meeting. That regulation is to resolve the difficulty of proving whether a particular director has approved the resolution at the board of directors. By the way, the Supreme Court held abstention from the action taken is entered the in the minutes of meeting. But, I think, it is right to interpret that abstention does not constitute objection.