은행의 지배구조와 은행 이사의 법률적 책임 - 상법 제401조의 해석을 중심으로 -

Abstract

The level of director’s fiduciary duty owed to the corporation very much depends upon the size and business area of the corporation. The rule can be best understood in terms of the bank director liability. Banks are required to contribute to the stability of the financial markets and to the development of the national economy. This is the reason that the Korean Supreme Court once ruled that bank directors must fulfill their fiduciary duties with utmost (enhanced) care. This Article argues that such fiduciary duties include the duty to properly manage risks. This Article suggests that violating the duty to manage risks bank director can be held liable also to third parties, partners to a joint venture project included, under Article 401 of the Korean Commercial Code. The bank director may breach the fiduciary duty to the bank even when the director acted in the short-term interest of the bank if the act exposed the bank to higher enterprise risk and caused the bank being responsible for the increase of the systemic risk. This Article argues that Article 401 of the Korean Commercial Code shall be interpreted by the following theory: It is possible that a director has intentionally breached a corporation’s contract with a third party rather by considering the interest of the firm. In such a case, whether it should be deemed as the director’s neglect of duty towards the corporationis not easy to answer at a glance. That is because it may be viewed as a breach of neither laws and regulations nor the articles of incorporation. Nevertheless, articles of incorporation of any company contain business objectives. A breach of external obligations in bad faith may undermine the company’s reputation and credit so as to deal a blow in achieving the company’s business objectives while affecting the reliance on the company placed by its interested parties such as its shareholders, officers and employees. From the perspective that a company does not exist solely for the purpose of seeking financial interests of its shareholders, but is a social being that should be sustainable, such an act of a director may cause harm to the company as well as to all of its interested parties even though it is in the interest of shareholders. Moreover, if a director arbitrarily breaches a contract, that can influence the corporate governance of the company, such as issuance of stocks or debentures, and not a general transaction of goods, such breach will ruin the company’s credit in the capital market and work unfavorably to the efforts of securing additional funding. Furthermore, it will remain as a bad record in case it is necessary to save the company in emergency situations.