이사의 감시의무에 관한 미국법 연구

• 영문명: A Study on a Director's Duty of Oversight under the American Law
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 정봉진
• 간행물 정보: 『비교사법』비교사법 제10권 2호, 357~391쪽, 전체 35쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2003.06.01

영문 초록

Under the American law, directors of corporations owe the duty of care to the corporation and its shareholders. In accordance with the duty of care, a director is required to act in goad faith and in a manner the director believes to be in the best interest of the corporation. The two basic functions of the corporate directors are decision-making function and oversight function. The directors' duty of care apply to these two functions. In discharging the duty of care with regard to its decision-making function, the director is required to exercise due care to ensure that board decisions are made as the result of reasonable deliberation. In discharging the duty of care with regard to its oversight function, the director is required to exercise due care to ensure that the corporation's affairs are properly managed. In Graham, Delaware Supreme Court held that a director's obligation to inquire into the conduct of the corporation's officers and employees arises only when there is "cause of suspicion" of misconduct. However, recently, Chancellor Allen of Delaware Court of Chancery suggested in Caremark that a director could face personal liability for the board's failure to install a reasonable information and reporting system to discover the wrongdoing of the corporation's officers and employees even when there is no cause of suspicion of misconduct. Chancellor Allen's opinion in Caremark that the director's duty of oversight involves a duty to install an internal control structure to monitor the corporation's compliance with the law represents a departure from precedent. However, many American commentators believe that the Chancellor's analysis of a director's responsibility to fulfill an active monitoring role is in accordance with the main themes of 'corporate governance over the past twenty years, According to those commentators, even the traditional view of Graham - that directors have no duty to "ferret out wrongdoing" - might not be accepted by every court today: and, a modem court might, in contrast to Graham court, hold that a board member's duty of due care includes the obligation to install formal control systems to prevent and/or discover wrongdoing, even if there are no concrete grounds to suspect the wrongdoing.

목차

1. 서론

2. 이사의 감시의무의 의의

3. 전통적 견해: 소극적 감시의무 원칙

4. 최근의 경향: 적극적 감시의무 이론

5. 이사의 감시의무와 경영판단의 원칙

6. 결론

참고문헌

ABSTRACT