「경영판단의 원칙」의 재조명

Abstract

Corporate management always accompanies risks to some extent. Given that directors' business decision results in losses to the corporation under ever-changing business environment and that a court easily approves that they would be liable for compensatory damages, they would have no option but to operate the corporation in a passive manner in order to avoid bearing liabilities caused by managerial failure. For corporate development and success, it is required that directors show their own entrepreneurial spirit as much as possible by participating in corporate management in an aggressive manner bearing risks to some extent, rather than sticking to seeking them to bear liabilities. In this perspective, in the U.S.A., discussion has been held over the business judgment rule under theories and precedents since long time ago. There has also been much discussion over the business judgment rule in Korea since about 15 years ago, but, its concept and direction of operation have not been clearly established yet due to earlier handling of other issues. If the business judgment rule is introduced, directors of a corporation in Korea will not be liable for their business decision on an informed basis andin the honest belief that their actions are in the corporation's best interest. They have a fiduciary duty having a characteristic of abstract slight negligence. In comparing with the standard (determining the level of negligence) required in the U.S.A., the level of their liabilities may be much stricter. Thus, it would be proper to apply the business judgment rule for business decision by the directors bearing strict duty of care in Korea. In this thesis, I have first reviewed general details of the business judgment rule, then, the trend of precedents made by the Korean Supreme Court, pertaining to the business judgment rule, and finally, would like to propose enactment of new provisions as to the business judgment rule under the Korean Commercial Act.