상법상 이사의 책임제한에 대한 연구

• 영문명: A Study on Limiting Director’s Liability
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 김병연(Byoung-Youn Kim)
• 간행물 정보: 『비교사법』比較私法 제15권 제1호, 237~267쪽, 전체 31쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2008.03.30

영문 초록

  This article deals with limitation of director’s liability. It is required all shareholders’ consent that a director’s liability be released under Korean Commercial Code. It is absolutely impossible to get all shareholders’ consent in shareholder meeting, especially in the listed company’s meetings. In Japan, until the revision of 2001 Japan Commercial Act has had the same regulation as in Korea. However, 2001 Commercial Act and 2005 Corporation Act have allowed the limitation and mitigation of directors’ liability.
  In the United States, since Smith v. Van Gorkom the development in permitting reasonable protection of directors’ from exposure of personal liability, so that directors would not be discouraged from fully and freely carrying out their duties, including risk-taking business. Model Business Corporation Act allows the inclusion of a provision in the articles of incorporation eliminating or limiting, with certain exceptions, the liability of the directors to the corporation or its shareholders for money damages. Almost states and ALI regulations have the similar position.
  One hand, in discharging their duties directors must always perform in good faith and in a manner reasonably believed to be in the best interests of the corporation. On the other hand, the business judgment of the board has also been protected under the above stated principles.
  Although 2007 Draft of Commercial Code offers the exemption of directors’ liability against the company, it does not have effectiveness due to the impossibility of getting all shareholders’ consent. Moreover, a division between negligence and gross negligence is to be considered toward the admission of proportionate liability in the future.

목차

Ⅰ. 문제의 제기
Ⅱ. 현행 상법상 이사의 손해배상책임체계
Ⅲ. 외국의 입법례
Ⅳ. 이사의 책임제한과 책임면제요건의 완화
Ⅴ. 결어
【참고문헌】
[Abstract]

키워드

이사의 책임제한 2007년 상법개정안 이사의 회사에 대한 책임 이사의 제3자에 대한 책임 이사의 손해배상책임 비례책임 경영판단의 원칙 사외이사 Director’s Liability Limitation of Director’s Liability Outside Director Proportionate Liability Business Judgment Rule