회사의 기부행위와 관련한 이사의 의무와 책임 기준 -영미와 국내의 주요 판례를 중심으로-

초록

Corporate donations are on the rise in the social environment where corporate social responsibility is emphasized. In this atmosphere it can be anticipated that the society and courts are generous to corporate philanthropic practices. Relying on this expectation, directors might ignore their fiduciary duties in deciding to make a donation. However, corporate donations are also subject to directors’ fiduciary duties which are applicable to other business decisions. In this context, though, it must be borne in mind that the test for determining whether a director is liable for corporate philanthropy should reflect the distinct nature and features of corporate donations from other business decisions. First of all, considering that the expected profits from corporate donations are intangible, indirect or long-term and the profits are difficult to assess quantitatively, directors tend not to base their philanthropic decision upon enough information on whether the donation will lead to profits such as goodwill. However, the requirement that directors should act on an informed basis and in the best interests of the company does not make exceptions for corporate donations. In this respect, when directors’ liability for corporate donations is called into question, the courts should scrutinize whether the directors exercised due care in identifying the anticipated profits from the donations based on information reasonably available to them. In addition, given that it is likely that directors might abuse their authority to make philanthropic decisions for their private benefits, the courts should analyze whether the directors acted in their own interests and failed to avoid conflicts of interest. If the decisions are found to be conflicted, the courts should invoke a more enhanced test for judicial scrutiny. Furthermore, the pressure from influential institutions or politicians to make a donation to their affiliated non-profit organization is likely to distort the corporate decision. Therefore, it is necessary to confirm whether the directors were compelled to donate during the judicial scrutiny of the donation.

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