미국회사법상 이사의 감시의무위반과 성실의무

Abstract

The board of directors should manage the business and affair of its corporation. These management duties are divided into two broad areas:decision making and supervision. The board's supervisory function imposes on the board the duty to monitor the performance of corporation's officers and employees and to make sure they comply with the law. The obstacles to meaningfully examine director oversight liability are the role of the business judgement rule in shareholder derivative suits and prevalence of exculpatory provision in charter documents. The Delaware courts in Caremark and Stone, the prominent decisions addressing oversight liablity,provide some initial guidance to structuring an analytical approach within the narrow scope of oversight liability. In the Caremark case, the Delaware Court of Chancery opined that directors could be liable for failed oversight if a plaintiff could show that directors knew or should have known that violation of law were occurring yet failed to take good faith steps to prevent or remedy the situation that proximately caused the complained-of losses. Caremark has been interpreted to condition liability upon the failure to implement reporting and monitoring systems, or once having implemented such systems or controls, failing to monitor and react to the information complied from such systems. In Stone v. Ritter, the Delaware Supreme Court held that a director's duty to act in good faith is a subsidiary element of the duty to act loyally. And the Court opined citing Caremark that liability for failed oversight required that the directors either utterly failed to implement any reporting or information system or controls; or having implemented such a system or controls, consciously failed to monitor or oversee its operations. Within corporations, answering that question is critical to determining when directors should have absolute authority and when they should be accountable to shareholders. Proponents of market-based approach argued that corporate directors operate within a pervasive web of accountability mechanisms that substitute for monitoring by residual claimants. But in response to the subprime mortgage crisis, many shareholder derivative suits have been filed, the majority of which allege,among other claims, a failure of director oversight. Now it is required to set up the standard that respect the general division of authority between the directors and the shareholders within the corporate power puzzle. When the Korean Supreme Court held liability for failed oversight, it set up the standard like Caremark's, even if fiduciary duties of Korean corporation law are different from those of US. We try to set up our standard of director oversight complied with fiduciary duties in our corporate governance.