이사의 감시의무와 내부통제시스템에 관한 연구 - 대법원 2021. 11. 11. 선고 2017다222368 판결 -

Abstract

On November 11, 2021, an important legal principle on the internal control system was established in the Supreme Court Judgement(Hereafter, this case) filing a lawsuit against the representative director's liability for damages. It is meaningful in that it acknowledged the representative director's responsibility for the illegal act of collusion, not fraudulent accounting, but it recognized not fulfilling his/her duty to create an internal control system and consider it to work properly as a violation of directors’ duty of oversight. Hereupon this paper reviewed the Supreme Court's decision on this case after examining the theory of the director's duty of oversight along with the facts of this case and the progress of the lawsuit. Specifically, the court's judgment on the director's liability for damages for the illegal act of collusion, the representative director’s reinforced duty of oversight and the details of the internal control system were examined. The Daewoo ruling, which first declared the legal principles of the director's duty of oversight through the internal control system, was a matter of third party filing a lawsuit against the director’s responsibility, whereas this ruling was significant as it was shareholders’ derivative suit and explained the legal principles of the internal control system in the case of filing a lawsuit against the company for the violation of director’s duty of oversight. Also it is significant that this internal control system is not limited to the accounting management system to prevent accounting fraud, but it systematically identified various laws and regulations that must be observed in business operation and managed compliance with them, and it expanded the scope of application of the internal control system in a way that once violation is found corrective measures can be done by reporting immediately.