株式會社의 派生金融商品去來에 관한 理事의 責任에 관한 硏究 -日本의 야쿠르트本社 株主代表訴訟 抗訴審 判決을 中心으로-

Abstract

As the environment of financial market has greatly changed and the scope of capital market has grown to a high degree, publicly held corporations have gradually taken interest in investment in financial products. Publicly held corporations have begun to invest in various financial products in order to utilize the corporate assets, so publicly held corporations have held a lot of financial products including bonds, stocks, and so on. Furthermore, they have engaged in derivatives transactions so as to make a profit on derivatives or to hedge risk. After the collapse of the bubble economy and sharp decline in stock prices, however, they have financially suffered great losses. In these cases, the management of publicly held corporations may be liable to the failure of financial products transactions. In this connection, a director of publicly held corporations has a duty to establish effective internal control system in order to minimize risk inherent in financial products transactions. The board of directors of the publicly held corporations, therefore, is ultimately responsible for establishing and monitoring internal control system. In Japan, the number of failure of publicly held corporations gradually grew after the collapse of the bubble economy. In recent case, a lawsuit was brought against the management of the YACULT Corporation engaged in derivatives transactions. The reason is that the YACULT Corporation suffered heavy losses in respect of derivatives transactions. In this case, the Court of Japan judged that the management of the YACULT Corporation basically bore no liability for the damage in respect of derivatives transactions on the basis of the fact that the YACULT Corporation already established risk management system. The Court of Japan, however, judged that the director who executed derivatives transactions in violation of the internal code related to derivatives transactions was liable. In Korea, the Supreme Court judged that a director of the publicly held corporations had a duty of internal control in the lawsuits in respect of the accounting scandals of the Daewoo Corporation. A director of the publicly held corporations, therefore, has a duty to establish internal control system and to monitor internal control system. Considering that publicly held corporations have a tendency to increase derivatives transactions, much emphasis should be placed on internal control system in order to hedge risk.