영국의 회사법제상 이사의 의무 및 입법적 효용성

Abstract

This paper reviews the general duties of directors, effects of their violations, and legislative utilities as suggested in the corporate laws of the UK. The Revised Combined Code 2003 attempts at enhancing the transparency of corporate governance by providing a number of devices that help increase the efficiency of composing and managing boards of directors. The Companies Act of 2006, which was influenced by the above-mentioned law, lists in Provisions 170 through 177 in Chapter 2 regulations on the breach of general duties of directors that include the followings: 1. duty to promote success of the company 2. duty to exercise independent judgement 3. duty to exercise reasonable care, skill and diligence 4. duty to avoid conflicts of interest 5. duty not to accept benefits from third parties, 6. duty to declare interest in proposed transactions or arrangements with the company The Company Directors Disqualification Act 1986 of the UK lists in Part 1 & 2 of Schedule 1 considerations that the court has to take before issuing disqualification orders to company directors, which include dishonesty and incompetence shown by the directors. With respect to the effects of the breach of general duties of company directors, the Companies Act 2006 regards derivative claims made by minority shareholders as legally enforceable (Provisions 260 through 269).Under the same law, however, even in case where a director engages in conduct amounting to negligence, default, breach of duty, or breach of trust that becomes the cause of a derivative claim, the court may acknowledge an ex post facto approval made by a general meeting of shareholders as legally effective (Provision 239). The same law also allows a company to reinstate a disqualified director under a court’s order (Provision 178). The Company Directors Disqualification Act 1986 of the UK authorizes the court to issue an order reinstating the disqualified director as long as the issued order is determined to be posing no danger to the public, whereas the court has the authority to issue an order disqualifying a director for a period of two to fifteen years under the same law.. Regarding whether the above-mentioned laws can be of legislative utility for the commercial laws of Korea, the study draws the following conclusions: 1. The independence criteria set out for company directors in the Revised Combined Code 2003 are considered to be of more comprehensive and practical legislative use than those set out in the Commercial Act and the Securities and Exchange Act of Korea in terms of disqualification period and requirements for issuing a disqualification order. 2. The concept of a director’s duty to promote success of the company is deemed to be of little legislative use for the Korean laws since it implies the long term increase of the company’s financial worth, which may lead a director to be passive in conducting his company’s business. The other six duties, however, seem to be of greater utility for the Korean laws in that they actually work as argumental evidence for both pros and cons under the Commercial Act of Korea at the time of writing the minutes of the Board of Directors. 3. Whereas the Companies Act 2006 applies both subjective and objective criteria to determining a director’s breach of general duties, there is little need for Korea to have such laws because the theories and case laws of Korea mostly apply objective criteria in determining a director’s breach of duty to exercise reasonable care, skill, and diligence. Rather, more debate is called for with respect to whether or not the introduction of the subjective criteria set out in Provision 174 Line b) of the Companies Act2006 can be more worthwhile in terms of improving Korea’s legal system.