英美法上 理事의 第3者에 대한 責任

Abstract

The fundamental attribute of corporate personality is the creation of a new entity which is a juridical person separate from its directors. Corporate should draw a clear line between a corporation's assets and liabilities and the personal assets and liabilities of its directors. As person separate from the corporation, directors dealing with third parties on behalf of the corporation bind the corporation's assets alone, in contract and in tort. As a Qualification to the underlying principle of separate corporate personality, there are circumstances in which directors are held liable. From the principle that directors' state alone should not impose liability, it cannot be deduced that corporation confers complete immunity from personal liability. This Article address the different situations under English and American Common Law where courts have decided to intervene, imposing personal liability on directors of corporations in order to protect the interests of creditors. This Article distinguish third parties as the shareholders and creditors, and about only creditors who decide to have a contractual relationship with corporation and be injured by director's torts address. The basic principle is that ''a directors as such is not personally liability for the tortious acts of the corporation; he is only liable if he has acted in such a way to take upon himself the dealing which had constituted the wrongful act." And the directors are merely the agents of the corporation, they are not responsible to creditors for the tortious acts of the corporation. The personal liability of the director toward a creditor of the corporation is based on the fact that the director breached the duty of care that he owed to that creditor, as distinct from the duty owed to the corporation which is intended to protect all the shareholders and creditors. The personal liability of directors towards creditors for breach of the duty of care may apply in a variety of cases : where an act or omission causes damage to the property of a creditor, where an act of omission causes personal injuries, where a negligent misstatements causes financial damage. But because the directors come in contact with not the creditors but the corporation, and there is no contractual relation between directors and its creditors, the directors only owed the duty of care to the cqrporation and be responsible to corporation. So English court demands ''The special relationship" between directors and creditors. The special relationship is the director has assumed personal responsibility for his conduct and the creditor has relied on that assumption of responsibility. If director has assumed personal responsibility to creditor, he owe the duty of care and the personal liability for breach of the duty of care. But American court doesn't demands "The special relationship". American court states if the negligent representation is made by him, he will be personally liable, as the person who actually committed the tort, and this liability will be joined to that of the corporation. Although the director hasn't assumed personal responsibility to creditor, the director who be responsible to creditor for duty of care as trustee is liable for creditor. The English approach favors directors more than the American approach. According to American court, a director is liable for the negligence, that he has committed during the ordinary course of his activities in the corporation. Whereas English court makes the liability of a director contingent upon his assuming responsibility by virtue of the special relationship between himself and the creditor, America court recognize the liability of the director as trustee when he is the one who committed the negligence, even if he did not intend to assume personal responsibility.