삼성전자 판례에 나타난 법원의 경영판단의 원칙에 대한 태도와 이사의 책임 제한 - 대법원 2005. 10.28. 선고 2003다69638 판결 판례 평석 -

Abstract

In the Samsung Electronics Case, the Court did not admit the liability of directors for purchasing and selling Lee Chun Electronics Co.Ltd., but admitted the liability of directors for selling stocks of Samsung General Chemicals Co.Ltd. It seems that the Court considered the business judgment rule for the issues where the Court denied the liability of directors. For the issues where the Court admitted the liability of directors, the High Court and the Supreme Court overruled the decision of the Suwon District Court,and reduced the amount of compensation to 20% of the company’s actual damages. The Court presented the principle of fair damage distribution. Still,the reasons in the decision contain many aspects similar with the requirements of the business judgment rule, stipulated in the Principles of Corporate Governance of the American Law Institute (ALI). Thus, it is regarded that the Court also considered aspects of the business judgment rule for the issues where the Court admitted the liability of directors. It is very reasonable to reduce the liability of directors to a certain degree. It is because if the law burdens excessive liability on directors, capable persons would not like to work as directors, and business projects might become too precautious. There are two ways to reduce directors' liability.One is to stipulate the limitation on directors' liability by law ex ante. The other is to reduce directors' liability in the court adjudication ex post. It seems that the Court reduced directors’ liability in the Samsung Electronics Case because in Korea there is not a law provision for the limitation on directors' liability. This article compares the provisions of the U.S. and Japan regarding the reduction of directors' liability and proposes a proper model for Korean legislation. American laws allow companies to make a provision in the articles of association to restrict the liability of directors. The Principles of Corporate Governance of the ALI stipulates that a provision in the articles of association may limit damages against a director to an amount not less than such person's annual compensation from the company. Under the Japanese Company Law, a company may stipulate the method to reduce directors' liability in the articles of association. In addition, the Japanese Company Law stipulates lowest limits of directors' liability. The limits are different for the CEO, directors and outside directors. Under such regulations, however, there is a concern that the liability of directors might stick to the lowest limit. Thus, this article suggests that the law should allow a company to fix a certain percentage of the company’s actual damages as the liability of directors in the articles of association, and should also stipulate upper limits of director’s liability.