영국회사법상 이사의 수임자의무

Abstract

The law relating to the fiduciary duties owed by directors and employees to companies is complex and involves several overlapping areas of law. It is, however, a relatively commonplace cause of action; individuals in positions of trust within a company are often tempted to abuse their position in order to steal company secrets, set up in competition, and poach staff and customers. Fiduciary duties have historically defied easy characterisation. This area of law as it relates to directors and employees is developing and complex. Directors and employees of companies acting out of self-interest have generated an increasing number of claims alleging breach of fiduciary duty. The issue in this area which has long been debated is that of the appropriate standard of care to be required of directors. Historically, the common law was based upon a very low standard of care, because it was subjectively formulated. The contents of this paper can be summarized as follows. The concept of fiduciary duty varies with the way of grasping the concept of duty of loyalty. The approach of proscriptive duty which is based on 'no conflict rule' and 'no profit rule' regards fiduciary duty as clearly limited sense, inadequate availability to ban the concept of self-interest, looking 'prescriptive duty' approach to the Board concerning a wide range of actions it needs to look into the concept. Specifically set forth Companies Act 2006 general obligation of the directors of these seven kinds of discourse perspective, the 'prescriptive duty' to see that approach is taken, as, according to § 178(2), only § 174 which is so-called duty of care to be non fiduciary duty, including § 172 those outside the fiduciary duty is to become. On the other hand, according to the authors opinion who's position of proscriptive duty approach, § 175 - § 177 are to be fiduciary duty, and § 171 - § 174 are to be non fiduciary duty. However, there is a difficulty underlying § 170(3) and (4), arising from the fact that, as we shall see, the statutory statement is more than simply a restatement of the commom law. In some cases it clarifies areas of uncertainty in the commom law, for example, in relation to the standard of care expected of directors, whilst in other cases it adopts a different approach from that of the common law, for example, in relarion to the authorisation by independent directors of conflicts of duty. Where there is a departure in the statutory statement from the previous common law, it will obviously be inappropriate for the courts to refer to that common law in the interpretation of the statutory duties. I think that the concrete verification is required to the reasoning and effectiveness of proscriptive duty approach, regarding the remedy for the breach of fiduciary duty in company law or the application of fiduciary duty on employment like as in adjoining company law.