비영리법인 이사의 선관주의의무

Nonprofit Directors’ Duty of Care

The nonprofit corporation is subject to the Civil Code in Korea. The public interest corporation, the private school, the medical corporation, and the social welfare foundation each is subject to special treatment under each of the related acts and subordinate statutes. Under the Civil Code article 61, nonprofit directors shall execute their duties with such care as is required of good managers. There are no other specific rules regarding the standard as applied to nonprofit directors than the above general duty of card in Civil Code. There are also very few reported cases of breaches of duty of care by nonprofit directors. Although the related acts typically give the supervisory office the authority to assure compliance with law, the only remedy to available to the supervisory office is the revocation of approval of executive’s taking office. Neither Civil Code nor the related acts regulating special nonprofit organization sufficiently deter directors from violating their duty of care. Furthermore, the current system lacks sufficient enforcement mechanism to discourage directors from breaching their duty of care. This article, pointing the limitations of the current system, proposes the following to improve it : (1) determining the appropriate duty of care standard and creating the guidelines for fiduciary behavior, (2) recognizing the effective means by which to enforce the duty of care, e.g. derivative suits and imposing fine or tax on directors who violate their fiduciary duty.