리스크 관리와 이사의 감시의무

Abstract

Caremark standard has long been the standard for a director's duty of oversight. Korean Supreme court also currently took this standard in Dae Woo case. However, this traditional standard for a director's duty of oversight confronts the situation where the application of such standard is not appropriate. It is the risk management. Risk management does encompass the huge scope of area. In the city group case, shareholders filed a lawsuit against directors for their breach of fiduciary duty turns by failing in risk management in the sub-prime mortga ge c risis. T he c ourt a pplies the ca remrk duty s ta nda rd t o this case and did find that the plaintiff does not convince that directors intentionally disregarded the risk exposed to the mortgage market. There are many critics on this court finding. In my view, some traditional theories need to be changed or modified. Caremark standard is originally for the case where there were wrong doings or frauds. Certainly not for the Risk management. Risk management is really a complex and dynamic matter. Just a simple method which is “intentional disregard” under the Caremark duty can not be an appropriate standard. Knowing between an action and inaction and applying the business judgment rule or applying the Caremark standard is not the right standard for the risk management. I think we c a n ma ke t wo b ig c a tegories in risk m a na gement. O ne is the selection of risk management and the other is the monitoring, recognizing,processing and addressing the problem. In the first category, business judgment rule shall be applied because such selection always involves the business decision. In the other category, the caremark standard is applied. In the future, given risk management is a common matter for all of the companies and a current risk matter is internationally linked, there must be more n eed to c rea te t he r ight sta nda rd f or r isk ma na gement a nd a d irector's oversight liability.