이사의 회사에 대한 손해배상책임 면제 규정의 재해석― 판례와 학설에 대한 비판적 고찰 ―

초록

This paper deals with the three legal issues in relation to article 400 of the Korean Commercial Code(hereinafter "KCC"). A few problems emerge on the interpretation of article 400 of the KCC. Firstly, the Korean Supreme Court(hereinafter "KSC") has decided that corporate directors should be liable for violation of their duties both under article 399 of the KCC and article 750 of the Korean Civil Code. Futhermore the KSC's opinion is that article 400 of the KCC's not applied to the liability for tort. Some academics hold the same position as the KSC's decision. The author believes that the KSC makes a wrong decision. Article 400 should be applied to the civil tort liability. Secondly, The article 401-2 of KCC states that the articles 399, 401 and 403 of KCC are applied to the de facto directors while article 400 is not so. Nevertheless, the author views that article 400 of KCC should be applicable to article 400. The argument is that de facto director is also regarded as corporate director by virtue of article 401-2. Lastly the important recent development is the emergence of case law upholding limitation of director's liability in some derivative suit cases, such as Samsung Electronics, LG Chemical etc. The korean courts have upheld that amount of liability could be limited for the purpose of fair distribution of damages among directors as well as between directors and their corporation. In addition, Seoul Nambu District Court(lower court) upheld individual divided liabilities among directors in LG Chemical case. Some academics doubt whether such decision makes sense despite article 399 of KCC which states joint and several liabilities among several directors. The author believes such approach is inevitable under article 400 of KCC.

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