이사의 책임제한 제도에 관한 입법론적 고찰 - 2006년 상법(회사편) 개정시안에 관한 검토

• 영문명: A Study on the Introduction of Limitation of Corporate Directors" Liability
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 최문희(Moon-Hee Choi)
• 간행물 정보: 『비교사법』比較私法 제13권 제3호, 337~382쪽, 전체 46쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2006.09.01

영문 초록

  The Korean Ministry of Justice has organized and supported the Special Committee in charge of the revision of Korean Commercial Code. One of the main issues of the revision, presented to the Committee, is to enact the system of Limitation of Corporate Directors" Liability.
  Under the Tentative Draft, it"ll be allowed for the Korean Corporations to opt in Limitation of Corporate Directors" Liability in the articles of incorporation. Part II considers the need for a limitation of liability system. The need for limited liability is closely examined through a discussion of the pros and cons over whether to authorize such a system. Important element of this controversy are whether and to what extent a limitation of liability system impacts the interests of the shareholders and other constituencies of the corporation, damaged by the conduct of the directors. Both opinions in this dispute have some validity. From theoretical perspective, there is no absolutely right answer as to which opinion in the controversy over limited liability is correct.
  This article intends to review the Tentative Draft regarding the limitation of corporate directors" liability for damages in terms of two kinds of questions. One is the question of how to determine the limitation of liability. This Part III closely examines various ways to make such a determination, including the Commercial Code, the articles of incorporation, the corporate constituencies (general meetings of the shareholders, board of directors), and the discretion of the courts. This Part concludes that the general meetings of the shareholders is the best organ to deal with the limitation of directors" liability.
  The other is to questioning regarding setting of the limits on the limitation of liability. This Part IV separately considers the types of liability which the director can be exempted from the liability, the ceiling on the liability director must pay, and the connection between the scope of the limitation and the compensation of the director. The author agree on the provision of the Tentative Draft in part in the sense the provision accept the concept of connection between the scope of the limitation and the compensation of the director. She concludes, however, that the minimal damages, supposed to be paid is, too enormous especially, for outside directors. Consequently, the the minimal damages are to be dwindled down.

목차

Ⅰ. 머리말
Ⅱ. 이사의 책임제한 제도의 논거와 필요성
Ⅲ. 책임제한의 방법
Ⅳ. 책임제한의 한도설정
Ⅴ. 맺음말
[참고문헌]
【ABSTRACT】

키워드

이사의 책임제한 위법행위억지 유능한 이사의 확보 책임제한의 방법 책임제한의 한도 Limitation of corporate directors" liability Deterrence from illegal acts Competent outsider directors Determining the limitation of liability Setting of the limits on the limitation of liability