理事의 第三者에 대한 責任

Abstract

A director, as a member of the board of directors, makes a decision on the business and affairs of a corporation and supervises on the directors execution of corporate affairs. The chairperson of the board of directors manages of the corporate business and affairs as a legal representative director. There are conflicting social demands in regard with directors‘ liability. One demand is the demand that directors shall have a wide discretion to manage a company dynamically and effectively without fear of judicial responsibility because directors business decisions frequently entail risk. The other demand is that directors liability to the third parties shall be strongly and widely imposed because damages to the third parties caused by directors wrongdoing or mismanagement are increased. The most important element is how to harmonize reasonably and efficiently these two conflicting demands. Directors have contractual relationship with the corporation pursuant to the Article 382 (2) of the Commercial Code. Directors, however, have no contractual connection with third parties other than the corporation. Therefore, directors are not liable for damages to the third parties. But when a corporation is dissolved or bankrupt because its directors fail to fulfil their duties or responsibilities, it is necessary to make those directors liable for third parties damage caused by the corporation s dissolution or insolvency. The Article 401 (1) of the Commercial Code provides that if directors have neglected to perform their duties and responsibilities due to bad faith or gross negligence, they shall be jointly and severally liable for damages to any third party. In interpreting and applying the Article 401 (1) of the Commercial Code this article following issues are raised theoretically as well as practically. The first issues is the legal character of director s liability provided in this Article. In my view point, the legal character of this liability shall be understood not as the liability originated by the Commercial Code but as a special regime of tort liability provided in the Article 750 of the Civil Code. The court interpretation on this issue is not clear and commentators opinions are not unified. The second issue is the scope of the corporate director be included in not only de jure directors but also de facto directors who is to be liable for damages to third parties injured. I agree that the corporate directors who shall be liable for third parties damages. And de jure directors include non-executive directors as well as executive directors. The term of de facto director is used and defined as the term indicating actual managers other than de jure directors. The third issue is the kinds of third parties who can make claim under this Article against any relevant corporate directors. Generally speaking, the scope of third parties includes creditors and bondholders of the corporation, and directors, auditors and employees who have the status as a corporate creditor. A shareholder who suffered direct damages from director s wrongdoing may be treated as the third party of this Article, but a shareholder who suffered indirect damages may not be treated as such. The forth issue is the extent of damages which is covered by this Article. Damages caused by corporate directors indolence to perform their duties to the corporation may be divided two types; damages which are directly suffered by third parties(hereinafter referred to as "direct damages"), and damages which are indirectly suffered by third parties(hereinafter referred to as "indirect damages"). Director s liability for damages pursuant to this article shall be subject to both direct damages and indirect damages.