經營判斷原則에 관한 硏究
(A) Study on Business Judgement Rule
경영판단원칙 이사 경영판단 폐쇄회사 주주대표 소송 특별종결 결정 적대적 기업인수;
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It seems true that, when the reality of operation of the joint stock company is examined so far, it has been operated actually as a private enterprise. It seems also true that the dominant shareholder has gained control of the management. The other organs of company has been no more than ornaments which confirm or approve the facts that were decided by the dominant shareholders. Owing to the wrong customary practice of this kind of escort-oriented management, our country came to undergo the economic crisis, the crisis of foreign exchange and the relief-financial aid of IMF. Besides, lots of enterprises came to be bankrupted or failed. Therefore, the government came to push the improvement of dominant structure about plutocratic enterprises through revision of the commercial law, the regulations. As for the commercial law and the provision about the director's faithful duty (article 382-3 of the commercial law) was newly established and strengthened. In connection with the strengthened director's liability, the business judgement rule has been introduced to Korea recently, however, courts introduced the aspects that judicial scrutiny is limited to the decision-making process. The business judgement rule which has been developed by American case law is a principle of corporate governance that has been part of the common law. The rule limits the scope of judicial review of merits of business decision in a variety of situation. In some situations the business judgement rule is amended or its application is restricted. With respect to the litigation committee's decision to terminate derivative litigation the business judgement rule is amended because of the litigation committee's structural bias and with respect to the defensive tactics against hostile takeover it is amended because of the conflict of interest between director and corporation business judgement rule's application is restricted for the protection of depositors. This article includes 1) The business judgement rule - an introduction 2) application scope of special situation 3) application to Korea commercial law. It's conclusion is that the business judgement rule is not peculiar to American law, and also Korean directors who act in good faith, in honest belief that the action taken was in the best interest of the company, and on an informed basis, will be protected by the business judgement rule.