비영리법인의 양도 - 운영권 양도계약을 중심으로

Abstract

In the recent Supreme Court Case involving nonprofit takeovers in 2013, the Supreme Court held that the trade of nonprofit management is not bribe by breach of trust. In Korean civil cases, the trade of nonprofit management is recognized the valid contract, not violating public policy. This Article argues that the trade of nonprofit management can be treated as a case of a breach of directors’ duty of good faith, even though the trade of nonprofit management itself is regarded as a valid contract, not violating public policy. Under the Civil Code article 61, nonprofit directors shall execute their duties with such care as is required of good managers. Elections of nonprofit directions should be regarded as a discharging the duties of director, and each members of the board of directors, when discharging the duties of a directors, shall act in good faith. The the controlling director owes a duty of reasonable investigation and due care to the nonprofit, and be hold liable for money damages resulting from the sale of nonprofit management to a purchaser be likely to loot the nonprofit. This article also points that recognizing the effective means by which to enforce the duty of care in nonprofit, e.g. derivative suits is an important research task in Korean legal system.