회사법상 행위기준과 재고기준Standard of Conduct and Standard of Review in Corporate Law
- Other Titles
- Standard of Conduct and Standard of Review in Corporate Law
- Authors
- 김정호
- Issue Date
- 2011
- Publisher
- 한국상사법학회
- Keywords
- fiduciary duty; duty of care; duty of loyalty; duty of good faith; standard of conduct; standard of review; standard of validity; standard of liability; business judgment standard; intermediate standard; fairness standard; procedural fairness; substantive fairness.; 신인의무(信認義務); 선관주의의무(善管注意義務); 충실의무(忠實義務); 성실의무(誠實義務); 행위기준(行爲基準); 재고기준(再考基準); 효력기준(效力基準); 책임기준(責任基準); 경영판단기준(經營判斷基準); 중간적 기준(中間的 基準); 공정성 기준(公正性 基準); 절차적 공정성(節次的 公正性); 실질적 공정성(實質的 公正性).
- Citation
- 상사법연구, v.30, no.3, pp.229 - 272
- Indexed
- KCI
- Journal Title
- 상사법연구
- Volume
- 30
- Number
- 3
- Start Page
- 229
- End Page
- 272
- URI
- https://scholar.korea.ac.kr/handle/2021.sw.korea/113951
- ISSN
- 1226-3362
- Abstract
- Melvin A. Eisenberg says, “a standard of conduct states how an actor should c onduct a given activity o r play a g iven r ole. A s tandard of review states the test a court should apply when it reviews an actor’s conduct to determine whether to impose liability or grant injuctive relief.” The former is refered to as ‘conduct rule’ that is addressed to corporate directors and officers, where as the latter is ‘decision rule’ that is addressed to judges. It is meaningful to distinguish the both in corporate law, because the business risk can in every moment be realized and result in a corporate loss.
Consequently it is justified that the both standards cannot be the same and should be distinguished.
In t he f ield o f duty of care, t he b oth standards normally d iverge. The standard of review varies here from the business judgement standard over ‘Caremark’ duty to ‘Red-flag’ test. In the field of duty of loyalty, the both standards may normally d iverge, o nly af ter the needed a pproval o f the incumbent organs - board of directors or shareholder meeting. In the field of take-over-law, the Delaware courts have developed the famous “intermediate standard” in 1980s.
It is also in Korea widely recognized in practice and scholarship to see the phenomenon, “the divergence of standard of conduct and standard of review in corporate law”. The main cause for that is probably the international convergence in corporate governance. The courts in Korea should sophisticately develop the case law on the director’s fiduciary duty.'u
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