회사법상 행위기준과 재고기준

초록

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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