증권집단소송법상 이사의 허위공시책임

• 영문명: A Window Dressing Liabilities of Directors in Securities Class Action Act
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 전삼현(Sam-Hyun Chun)
• 간행물 정보: 『비교사법』비교사법 제12권 3호, 399~422쪽, 전체 24쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.09.01

영문 초록

The liabilitie of Directors in class action has been a hot issue in Korea since 2004. Furthermore, the window dressing, which has been hardly found after it was put off to bring accounting fraud cases to class action for 2 years under the new additional rules to the Securities-related Class Action Act in now. The Korean Commercial Code imposes directors with a duty of care and a duty of loyalty (Art. 382 Ⅱ, 382 ter). Directors are liable to a corporation, shareholders, and creditors for violation of their duties (Art. 399, 401). Directors owe duties of due care to their stock holder and are liable for their losses resulting from unfair window dressing. As a matter of law, the 1998 Revision of the Korean Commercial Code added the duty of loyalty as director's duty. Judicial review of a director's acts, usually through class action, is increasing. With the addition of fiduciary duty and strict enforcement of a director's liability in class action, directors will thus be exposed to liability more than ever before. Duties of corporate directors in Securities Class Action are generally controlled by the Commercial Code and Securities Exchange Act, Securities Class Action Act. Under American corporation law, a corporate director, who has a fiduciary relationship with the corporation, owes three basic duties to the corporation they serve: obedience, diligence, and loyalty. Fiduciary duty of care usually requires that a director discharge his duties in good faith, with the care that an ordinarily prudent person in a like position would exercise under similar circumstances and in a manner he reasonably believes to be in the best interests of the corporation. This duty may be stated as the standard of care to be exercised by an ordinarily prudent person in the same or similar circumstances. Since the current trend in the corporate governance debate in Korea is to strictly enforce liability rules on directors, directors are greatly exposed to liability. Increased exposure to liability will deter qualified individuals to serve as directors of corporation. It is essential to reduce the liability exposure of that capable persons may afford to serve in the corporate sector. The solutions for reducing the liability exposure may be to limit directors' liability, or to obtain director and officer (D & O) liability insurance. Protection of directors by those measures will encourage sound corporate management which is a prerequisite to responsible corporate activity. In conclusion, for directors to effectively monitor management and to enhance overall firm performance, the limitation of directorial liability is as much important as assurance of independence from the CEO and strict enforcement of liability in securities class action.

목차

Ⅰ. 머리말

Ⅱ. 증권집단소송에서의 이사의 책임원칙

Ⅲ. 판례검토

Ⅳ. 결어

[참고문헌]

【ABSTRACT】