美國法上 理事의 責任과 義務 - Fiduciary Duty를 중심으로

• 영문명: The Duties of Director in the United States - Based on Fiduciary Duty -
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 賈政埈(Jung-Joon Ka)
• 간행물 정보: 『비교사법』比較私法 제14권 제1호, 1~22쪽, 전체 22쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2007.03.30

영문 초록

  This paper has mainly examined the fiduciary duties. Since I am not an expert of commercial law, it is not comfortable to do my research under the duties of director. However, everybody has claimed that the fiduciary duties of director have originated from ones of trustee. It has added that even the fiduciary duties of director in Korean law come from the ones of trustee in common law. Nevertheless, it is not easy to find the Korean articles on the fiduciary duties of trustee in common law. This is the main reason why I began to research this topic and introduce this article to this Law Review.
  This paper consists of five chapters. First and last one are the introduction and conclusion, respectively. Second one explored the fiduciary duties of trustee in trust. Third one studied the duties of director in commercial law. Fourth one was about the comparison of fiduciary duties between a trustee and director in the point of view under law and economics.
  In the second chapter, I introduced the traditional fiduciary duties of trustee. These duties are mainly classified into the duties to res and beneficiaries. The duty to res is more detailed with the followings; the duty collect in the assets, the duty to invest, the duty to distribute, the duty to maintain equality, and the duty to provide accounts and information. The trustee is required to perform these kinds of duties with utmost diligent. On the other hand, the duty to beneficiaries is summarized as the duty to manage trust only for beneficiaries. It is so called the duty of loyalty. This duty of loyalty requires a trustee to do his or her duty more than with good faith and reasonable standard.
  In the third chapter, I explained the duties of directors based on the fiduciary duties of trustee. Like the duties of trustee, the ones of director are summarized into the duty of care and the duty of loyalty. Especially, they are called fiduciary duties of director. They are required to perform these duties with the care of an ordinarily prudent person and good faith. However, it is likely that the standards of director to do these duties are lower than those of trustee.
  In the fourth chapter, I tried to show the differences of fiduciary duty between trustee and director in the point of view under law and economics. Mainly, such differences are explained with the theory for the asymmetry of information. This theory tells a lot of reasons for such differences. It is unlikely to assume an asymmetry of information under the relationship between directors and shareholders and the structure of the corporation. On the other hand, it is likely to assume the asymmetry of information under the relationship between trustees and beneficiaries and the structure of trusts. The likelihood for the asymmetric information requires trustees to have a higher standard for fiduciary duties than directors.
  In conclusion, it is more necessary to do research for the fiduciary duties of trustees because of enormous changes in using trusts. Recently, many people have used trusts as the means of investment rather than the means of management and inheritance. In such these circumstances, the fiduciary duties of trustees should be redefined.

목차

Ⅰ. 서론
Ⅱ. 신탁법상 수탁자의 "信認義務"
Ⅲ. 이사의 의무
Ⅳ. 수탁자와 이사의 ‘신인의무’에 대한 법경제학적 고찰
Ⅴ. 결론
【참고문헌】
【Abstract】

키워드

신탁 수탁자 이사 경영판단법칙 신인의무 성실의무 충실의무 정보의 비대칭성 Trust Director Trustee Fiduciary Duty Duty of Care Duty of Loyalty Business Judgment Rule No-Further-Inquiry Rule Asymmetry of Information