이사의 회사에 대한 책임제한에 관한 연구

Abstract

There is a problem with whether we can apply the legal principles of comparative negligence and liability restriction to a person who deliberately committed an illegal act. In other words, when the person who claims for damages is at fault, a questions arises to whether it is possible to apply a liability restriction, which determines the damages by considering comparative negligence in view of the fact that the fault caused the damages to occur or inflate, or by considering the principle of equal split of liability. In this paper, we review the responsibilities of corporation directors who bear the burden of the duty of care and the duty to be faithful. When Samsung Electronics Co., Ltd. had sold its unlisted stocks at low prices, the High Court and the Supreme Court ruled that the actions of the directors fell under a illegal act that does not clear their responsibilities. In this case, it was necessary for Samsung Electronics to raise capital to invest in its semiconductor business by selling its unlisted stocks, and the directors followed the practice of those days to determine the sale price of the unlisted stocks based on the enforcement ordinance of the inheritance tax law. When it is customary to estimate the sale price of unlisted stocks according to the rules of the law, and the directors followed the custom, they hardly caused the damage to the corporation by neglecting their duties with willful or gross negligence. Therefore, it is our opinion that the directors did not commit an illegal act that does not clear their responsibility. According to the Supreme Court ruling prior to the 2011 Commercial Law Reform, even in cases where the actions of the director fall under illegal acts, circumstances may be taken into account to restrict liability for damages. However, according to the Commercial Law revised in 2011, when willful or gross negligence is on the part of the director, it is not allowed to reduce the director's responsibility to the corporation, even when fixed by the articles of association. Thus, a question arises as to whether the legal principle of liability restriction underlying the Supreme Court ruling can be applied after the imposition of the Revised Commercial Law. A question arises to whether the legal principle of the court ruling, which comprehensively takes various circumstances into consideration and limits the responsibility, is realistical in a practical sense. Since careful examination of the ruling does not make it clear how various circumstances are specifically taken into account, it is possible that there could be criticisms that the plaintiff's right to claim damages can be violated arbitrarily without a specific legal basis. It is highly necessary to devise a plan to prevent such concern. When loss to the corporation is caused by a willful act of the director, it is reasonable to not restrict the director's liability for damages. According to the stipulations in the Civil Law on reduction of amount of claim for damages, when the loss was not caused by willful or gross negligence, and the compensation has a significant influence on the indemnitor's livelihood, the amount of damages can be asked to be reduced (Civil Law Article 765 Section 1). In terms of balanced interpretation in accordance with this stipulation, and it is unreasonable to apply principle of liability restriction when the director acted intentionally and had means to compensate for damages.