이사책임 법리에 관한 일본의 최근 논의 동향 -이사의 회사에 대한 책임을 중심으로-

Abstract

Concerning the responsibilities on company of the Directors, Japan is diverted from ‘liability without fault’ to ‘principle of liability with fault’ by company law in 2005. Korea is diverted from ‘liability without fault’ to ‘principle of liability with fault’ by Korean Commercial Code revision in 2011. As a result, there is no difference about the responsibilities of directors between Korea and Japan. In addition, Korea and Japan are the same in terms of the fact that directors’ management decisions are subject to judicial review. This relates to Business Judgment Rule. However, in Korea, there are not lots of discussions about protecting profits of shareholders of Parent company in corporate groups. Recently, discussions are being held on the introduction of a Multiple Derivative Suit system. However, in Japan, there was a legislative attempt to impose a duty affiliated company supervision of parent company's directors for protecting profits of parent company’s shareholders, and the Multiple Derivative Suit System were adopted by the company law revision in 2014. But Korea and Japan have different Shareholder Derivative Suit that hold the directors to account. Shareholder Derivative Suit systems are actively used in Japan and Korea modeled the Japanese system. But there is a difference in the specifics. Korea’s Shareholder Derivative Suit is a minority shareholder right, unlike Japan. In addition, the legal system, such as the intervention of Interested Parties, has not been introduced to ensure the validity of Suit System in Korea. As a result, Shareholder Derivative Suit is not working properly. However, it is very highly worrying that Shareholder Derivative Suit do not function properly, considering the importance of Shareholder Derivative Suit. Because Shareholder Derivative Suit is Subsequent Remedial Measures. If the Subsequent Remedial Measures do not work properly, legislation must be directed to preventive regulations, and preventive regulations are likely to lead to excessive regulations. The function of Shareholder Derivative Suit is not simply a stepping stone to enhance the responsibilities of the director. It is also a matter of direct concern to the regulatory regime of Korean Commercial Code. Therefore, it is necessary to actively review the Shareholder Derivative Suit.