판례를 통해 본 이사의 충실의무

Abstract

In this article, we have reexamined the Article 382-3, that is the duty of loyalty clause, which was enacted in 1998 amendment, to contrast the differences between the duty of care and duty of loyalty by analysing the Supreme Court's decisions. Now there is two ways to explain the Article 382-3. First, the Article 382-3 is the category of the traditional construction of the duty of care and it does not constitute a separate or higher duty for corporate directors. Second, the director's duty of loyalty in the Article 382-3 is different from the preexisting duty of care. To approach and to find out the debates on the core of the Article 382-3, this article chose the analysis of the Korean Supreme Court's decisions which was judged between ex ante judgement 1998 and ex post judgement 1998. As a result, whether the Article 382-3 is different from the duty of care or not is not clear. But this points are explained the economic phenomenon which is enough to need to apply the Article 382-3 directly. That is, our economic scale is not large to apply the Article 382-3 or the Supreme Court's decisions in the line of director's liability do not need to apply directly. In Japan, the same Article was enacted in 1950. But it takes almost 40 years to apply the same Article to the judgement. It is highly unlikely that directors suddenly became more greedy at that time. Consequently Japan's experience with the duty of loyalty shows that whether the Article 382-3 does not apply directly on the judgements now may not important and as the change of the legal infrastructure and economic development, Article 382-3 may become a core rule to the case of corporate director's liabilities.