理事의 責任制限의 根據 및 論理構造

Abstract

Few cases of damages had been claimed by the company against directors or officers in Korea until the IMF economic crisis in 1997. But the cases of kind have dramatically increased since then. The phenomenon brings a lot of legal issues to korean jurisprudence. One of them is limitation on the liability of D&O under joint and several liability principle. The article 399 and following 401-2 in the Korean Commercial Law provides the joint and several liability of directors or officers to the company. If directors have acted in violation of any Acts and subordinate statutes or the articles of incorporation or has neglected to perform their duties, they shall be jointly and severally liable for damages to the company. In Korea, joint and several liability means that those who are liable for even 1% have obligation to pay all the amount of damages. But directors or officers managing big-sized companies faced to go broke because of gigantic sum of damages. Therefore, on the case of Dongbang Perigrine Securities Co. in 2004, the Supreme Court upheld that the amount of liability can be limited under consideration of fair distribution of damages between wrongdoers and victims. Furthermore, through secceeding cases, some lower courts explore extreem limitation on the liability to the degree to abolish joint and several liability and bear divided liability. Some commentators criticize such an attempt for unreasonable interpretation of statutes, the articles of the Commercial Code 399 and 401-2. I have an opinion that limitation on the liability of directors or officers to the degree of full-pledged divided liability can not be put because courts don't have authority to nullify statutes through interpretation.