이사의 의무와 책임(개정상법반영)

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대학원 발표후 보충해서 다시 올린자료입니다. 기존의 여러 논문들을 바탕으로 최신 개정법령까지 반영하여 깔끔하게 정리했습니다.

목차

I. 서 언 ·····································································································1

II. 이사와 회사와의 관계 ··············································································1

III. 각국의 이사의 책임 ················································································2
1. 일본 ······································································································2
2. 미국 ······································································································2
3. 독일 ······································································································3

IV. 이사의 회사에 대한 손해배상 책임(제399조 제1항) ····································4
1. 손해배상책임 ··························································································4
2. 임무해태책임 ·························································································5
3. 자본충실의 책임 ·····················································································6
4. 책임의 소멸 ···························································································7

V. 제3자에 대한 책임(제401조) ····································································8
1. 의의(입법취지) ·······················································································8
2. 법적성질 ································································································8
3. 책임의 원인 ·························································································10
4. 책임을 지는 이사의 범위 ·······································································10
5. 제3자의 범위 ························································································11
6. 입증책임 및 책임의 소멸 ·······································································13
7. 책임의 제한(일부면제) ···········································································13

VI.업무집행관여자(사실상 이사)의 책임 (제401조의2) ····································14
1. 의의 ····································································································14
2. 사실상 이사의 범위 ···············································································15
3. 책임의 내용 ·························································································17

VII. 경영판단의 법칙···················································································19
1. 의의 ····································································································19
2. 우리나라의 학설과 판례 ·········································································19
3. 일본의 경우 ·························································································20

VIII. 배상책임보험 ·····················································································21
1. 의의 ····································································································21
2. 도입논의 ······························································································21

IX. 2006년 상법개정안의 내용(이사의 회사에 대한 책임감경) ·························22
1. 이사의 회사에 대한 책임의 과실책임의 명문화(상법개정시안 제399조 제1항)·22
2. 이사의 회사에 대한 책임의 감경(상법개정시안 제400조 제2항)····················22

X.결론 ·····································································································23

본문내용

I.서언
상법은 주식회사의 업무집행기관을 이사회와 대표이사로 이원화하여 이사회는 회사의 업무집행에 관한 의사결정과 이사의 직무집행을 감독하도록 하고 대표이사는 회사를 대표하여 업무집행을 담당하도록 함으로써 이사는 이사회의 구성원으로서 회사의 업무집행에 관한 의사결정에 참여하고 또 다른 이사의 공정한 직무집행을 감독하는 의무도 부담하고 있는 것이다 이처럼 상법은 회사의 기업경영을 이사회에 맡기고 있어서 이사는 비록 개별적으로는 직무집행권을 가지지 아니하나 이사회를 통하여 회사의 업무집행에 관여하게 되고 또 대표이사로 선임되면 구체적으로 업무집행권을 행사하게 된다. 그리하여 이사는 그가 대표이사이든 아니든 회사의 기업경영에 있어 중요한 지위를 차지하고 있어 이러한 지위와 입장을 고려할 때 이사가 법령 또는 정관에 위반한 행위를 하거나 그 임무를 게을리 한 때에는 채무불이행이나 때로는 불법행위의 책임을 지며 이러한 민법상 일반원칙만으로는 부족하며 이로 인해서 주주나 채권자등의 제3자가 손해를 입게 되는 경우에 상법은 특별규정을 두어 그 책임을 부담시키고 있다. 따라서 이사는 직접적으로는 업무집행을 하지 않으나 이사회의 구성원으로서 대표이사가 아니더라도 중요한 지위를 차지하고 있어 그에 따른 이사의 권한남용을 방지하는 규정인 이사의 책임에 대하여 검토하여 보고자 한다.

II.이사와 회사와의 관계
이사는 회사의 기관은 아니지만 이사회의 구성원으로 업무집행을 위한 의사결정과 업무집행과 회사를 대표하는 대표이사의 전제요건으로써 주식회사의 필요적 상설기관을 말한다.
이사는 회사로부터 법률행위 및 법률행위 이외의 사무를 위임받은 자로서 민법상의 위임에 관한 규정을 준용한다. 따라서 일반적으로 이사는 위임계약에 따른 수임인으로서 위임의 본지에 따라 선량한 관리자의 주의로써 위임사무를 처리할 선관주의의무와 함께 특별한 충실의무를 갖고 업무를 수행할 의무를 가지게 되며 고도의 인적 신뢰를 기초로 하는 매우 높은 주의의무로서 이사는 사용인과 달리 회사경영의 주체라는 지위의 중요성 때문에 요구되는 것이다. 따라서 이 계약관계를 전제로 하여 이사는 회사에 대하여 각종의 권한과 의무를 가지게 된다.

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