이사회의 보수결정에 대한 미국법원의 사법심사와 이사의 성실의무

Judicial Review on Executive Compensation and Duty of Good Faith

Notwithstanding as much public debate and outrage as the executive compensation, the judical comport with the procedural judical review steadily began to displace the substantive judical scrutiny of executive compensation. The Delaware Chancery Court case of In re Walt Disney Co. Derivative Litigation, 825 A.2d 275(Del. Ch. 2003) presented the duty of good faith in the context of board's decision on executive compensation. According to The Delaware Chancery Court's opinion dereliction of duty or conscious disregard for one's responsibility constitutes the breach of good faith and various rules that limit the duties of care and loyalty are not inapplicable to the conduct that violate the duty of good faith because of the high degree of wrongfulness. Although the liability standard of the duty of care is gross negligence and the core of the duty of loyalty is conflicts of interest and independence, the standard of bad faith is intentional dereliction of duty. So the duty of good faith as a new fiduciary duty is different from traditional fiduciary duties of care and loyalty. The normative basis of the duty of good faith is in the facts that it covers improper managerial conducts that does not violate the traditional fiduciary duty and play the role of changing the behavior and incentives of corporate fiduciaries and thereby changing corporate governance. And the duty of good faith also provides principled basis for new fiduciary obligations in response to social change. Although the magnitude of Orvitz compensation package had influence upon the court's assessment of the possible procedural inadequacies, it is not clear that the court took the substantive reasonability of compensation implicitly. Because the facts that constitute bad faith are similar to the facts that constitute gross negligence, the courts are likely to prefer the procedural review to the substantive one.