미국 회사법상 이사의 감시의무와 그 시사점
The Director’s Duty of Oversight in American Corporate Law and Implications on Korean Corporate Law
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The corporate director’s duty of oversight in American Corporate Law comes from a fiduciary duty, namely to the duties of care or loyalty. The Courts, in cases of Caremark, Disney, Stone, Citigroup, Lear, provide some initial guidance to structuring an analytical approach within the narrow scope of oversight liability. In response to the subprime mortgage crisis, many shareholder derivative suits have been filed, the majority of which allege, among other claims, a failure of director’s oversight. In Stone v. Ritter, the Delaware Supreme Court held that a director’s duty to act in good faith is a subsidiary element of the duty to act loyally. And the Court found that there are two conditions necessary for liability under the standard set by Caremark:The directors utterly failed to implement any reporting or information system or controls; or Having implemented such a system or controls, consciously failed to monitor or oversee its operations thus disabling themselves from being informed of risks or problems requiring their attention. In either case, imposition of liability requires a showing that the directors knew that they were not discharging their fiduciary obligations. The above mentioned the director’s of oversight in Korean Supreme Court is similar to Caremark. Following this streams, the Korean Court should try to set up standard of director oversight complied with fiduciary duties in our corporate governance.
Abstract
The corporate director’s duty of oversight in American Corporate Law comes from a fiduciary duty, namely to the duties of care or loyalty. The Courts, in cases of Caremark, Disney, Stone, Citigroup, Lear, provide some initial guidance to structuring an analytical approach within the narrow scope of oversight liability. In response to the subprime mortgage crisis, many shareholder derivative suits have been filed, the majority of which allege, among other claims, a failure of director’s oversight. In Stone v. Ritter, the Delaware Supreme Court held that a director’s duty to act in good faith is a subsidiary element of the duty to act loyally. And the Court found that there are two conditions necessary for liability under the standard set by Caremark:The directors utterly failed to implement any reporting or information system or controls; or Having implemented such a system or controls, consciously failed to monitor or oversee its operations thus disabling themselves from being informed of risks or problems requiring their attention. In either case, imposition of liability requires a showing that the directors knew that they were not discharging their fiduciary obligations. The above mentioned the director’s of oversight in Korean Supreme Court is similar to Caremark. Following this streams, the Korean Court should try to set up standard of director oversight complied with fiduciary duties in our corporate governance.
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