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Abstract

Directors of corporations face liability risks from the inappropriate investment. Directors who breach their duties to the corporation may be liable if the corporation suffers a loss that can be directly attributed to their commissions or omissions. Liability of directors in this regard may arise as a result of their failure. The business judgment rule is an assumption that in making a business decision, the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company. The business judgment rule is a U.S. case law, derived concept in corporations’ law. Given that the directors cannot ensure corporate success, the business judgment rule specifies that the court will not review the business decisions of directors who performed their duties in good faith, with the care and in the reasonable belief that their actions are in the corporation's best interest. The business judgment rule performs a function favor of the directors, freeing from possible liability for decisions that result in harm to the corporation. Although several decisions have held that the rule is available to directors, commentators are divided as to whether the business judgment rule is available to director. The Korean Supreme Court accepted partially the business judgment rule in Breach of Trust cases. Some commentators have stated the opposite. As the Supreme Court has said, in the inherently risky environment of business, the directors need to be free to take legal liability affecting their judgment if the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company. As part of directors’ duties, which includes both a fiduciary duty, and a duty of reasonable care, directors have a duty not to waste corporate assets. The court held that directors of a corporation have an obligation to apply property towards the rational objects of the corporation. This duty includes not undertaking an unauthorized business purpose. The consequence of a breach of such a duty is that the transaction is voidable by the company. The duties and liabilities of directors are governed by statute. Failure to properly perform these duties may render a director criminally liable to pay damages. Also the consistent decision in the area of small businesses emphasizes the fiduciary responsibility of directors of corporations. Any loss of assets due to the malfeasance or failure to act of the directors could make the directors liable for possibly breach of trust. The case also includes the business judgment rule which states that if a director has applied reasonable care, has a basis for believing that the decision made was in the best interest of the company, the director will not be held liable for a breach of duty. This is only if a director did not act in bad faith or for improper purpose. Under the Criminal Law, the business judgment rule is not yet the offspring of the fundamental principle, that the business and affairs of a corporation are managed by directors. In addition, its notable facet is that some directors’ decisions lie outside the business judgment rule. Furthermore, courts may apply the more stringent test, requiring a director when acting as a director in good faith and for a proper purpose, in the best interests of the company, with the degree of care. Consequently, one of the points of review that has entered the business judgment rule was the prohibition against duty of loyalty violation. The law imposes fiduciary culpabilities to ensure that authority is exercised responsibly. Directors in a business should act in good faith, in the best interests of the corporation. By implementing reasonable and rational decision, directors reduce the risk of liabilities for breach of trust.