부실계열회사 지원에 대한 이사의 책임

Abstract

In South Korea, the Business Judgment Rule is applied when judging whether there is illegality on supporting a subsidiary company at risk of insolvency. Therefore, even when the support turns out to be a failure, the board members who decided to support, would not take legal responsibilities for their failure to the extent that the decision had been made based on fully gathered information, discussed in good faith, and concluded reasonably. Despite the principle of law, in South Korea, the courts have awarded supporting acts as business judgment in only few cases. In most cases, the supporting acts called into question had been conducted by the company owner’s one-sided instruction. The other regulatory trend on supporting affiliated company is that such acts are usually treated as criminal charges such as breach of trust. Many scholars have pointed out the expansion of criminal punishment to the business area is socially undesirable. However, this trend is expected to last for some time considering three practical reasons: firstly, breach of trust is the crime which can be punished without proving the existence of real damages. Secondly, there are not much incentives for the injured party to file a civil damages lawsuit. Lastly, the burden of proof is high as the plaintiff has no access to evidentiary materials in civil cases in South Korea. Meanwhile, the Monopoly Regulation and Fair Trade Act(‘MRFA’) regulates enterprise groups in order to prevent the excessive concentration of economic power. The acts supporting insolvent affiliated company can be awarded as unfair support under the MRFTA. In this case, the existence of enterprise group can provide grounds for extending board members' responsibilities for supporting insolvent affiliated company. By contrast, there is an argument that board members’ responsibilities should be reduced if they sacrificed individual companies in attempt to increase the amount of profits of the whole entire enterprise group. Still, the court is reluctant to admit the profit of the enterprise group apart from that of individual companies.