개정 상법상 책임제한 조항의 해석론 및 바람직한 실무운용 방안 - 책임제한의 결정주체 및 소송, 화해와의 관계를 중심으로 -

Abstract

The revised Korean Commercial Code of 2011(hereinafter "KCC") 400(2) permits corporations to limit their directors' liability for monetary damages for breaching their duty with some exceptions. Corporations could do so by amending their charters, an action requiring the shareholders' approval. During the season of annual meeting of shareholders this year, many listed corporations have opted provisions in their charters permitting liability-limitation. Among them, some corporate charters enable the board of directors to decide on the matter of the liability-limitation of directors. Several issues emerge on the interpretation of the KCC 400(2). Part II reviews the most heated debate regarding who might be entitled to decide the limitation of liability. Since the 400(2) of the KCC does not provide explicitly who has the power to decide on the limitation of liability, opinions differ as to who has the authority to decide that matter. This paper suggests that the power be exercised by the shareholders, even though the 400(2) of the KCC might be interpreted as granting the power either board of directors or shareholders. In addition, some important matters should be disclosed to the shareholders so that they could decide on informed basis, such as the reason for proposal for provision permitting liability limitation, damages, exemptible amount of damages, the name of director and her duty and compensation, and minimum liability. Part III reviews whether the decision on the limitation could be made even before the final judgment, at any stage. This paper suggests that without any final judgment, even without directors' being sued, the decision could be made. If the liability of a director is limited to some amount of damages, damages of the other liable directors, whose liability are not limited, should be reduced as well. Part IV deals with two issues. One is whether the courts should comply with the rule of capping the damages in deciding the damages. This paper suggests that courts could decide damages without regard to the KCC 400(2). The other suggestion is that the minimum limit of the damages could be applied to the settlement. The minimum limit should be applied to the amount of the extrajudicial settlement, while not be applied to the consent judgment.