회사기회유용의 법리와 상법 제397조의2

Abstract

Article 397-2 of Commercial Code is the legal principle on usurpation of corporate opportunity, which was established by the judicial precedents in United States for 100 years. The article was established under the influence of Article 5.05 in the Principles of Corporate Governance established by American Law Institute (ALI) in 1994. The Article 5.05 of ALI in United States, which our Article 397-2 of Commercial Code followed, was legislated based on multiple judicial precedents on usurpation of corporate opportunity such as the Largarde Case in 1900, the Guth Case in 1939, the Durfee Case in 1948 and the Miller Case in 1974. However, the legislation of Article 397-2 of Commercial Code in Korea was led by civic groups, including People's Solidarity for Participatory Democracy, to regulate the giving work to affiliated company with favor by conglomerates. Typical examples are the Glovis Case of Hyundai Motor Group and the Gwangju Shinsegye Case. The concept of corporate opportunity is too abstract and its scope can be expanded without limitation; therefore, our Article 397-2 of Commercial Code defined the scope of it in more detail to some extent when following the Article 5.05 of ALI. Nevertheless, still there is a room of dispute on the extent of business scope in corporate opportunity due to the ambiguity of the concept. Duty performance relevance and business relevance are suggested as a standard to judge corporate opportunity; however, still it is not easy to differentiate them clearly. Especially, the scope of corporate opportunity, which may be extensively acknowledged by business relevance, can be controlled by the business judgement of the directors. Another issue is that whether ‘work execution ordering person’ (under Article 401-2-1 of Commercial Code) or controlling shareholder could be held responsible for the duty to prohibit usurpation of corporate opportunity or not. It is difficult to agree on this in reference to the clause and interpretation of Article 397-2 of Commercial Code. Such responsibility can be enforced only when Article 397-2 of Commercial Code on usurpation of corporate opportunity would be added to the main text of Article 401-2-1 of Commercial Code, which regulates work execution ordering person and others. Here, whether the usurpation of corporate opportunity by controlling shareholder and its relatives would be regulated or not is the future task of legislation theory. Another issue is the approval agency on corporate opportunity. The issue is that whether general shareholders’ meeting can approve it by a clause in articles of association or by getting the approval of general shareholders, even current law defines board meeting as the approval agency. The Supreme Court ruled that general shareholders’ meeting can approve ‘self-dealing’ (Article 398 of Commercial Code) by a clause in articles of association or by getting the approval of general shareholders; therefore, it is believed that the usurpation of corporate opportunity should be interpreted in the same manner. Another issue is that whether there should be a clause on intervention right on usurpation of corporate opportunity like the intervention right on prohibition of competitive business or not. It is believed that there would be the effect of intervention right to some extent because there is a clause on compensation for damage in Article 397-2. As discussed above, the legal principle of usurpation of corporate opportunity, which was established by the case law of United States, has been discussed in the bigger framework of the duty of loyalty of directors. As this legal principle has been newly established in Article 397-2 of our Commercial Code, the future rulings of our court on individual cases will draw interest and attention. There was an opposition during the legislation of this clause between the party who supported the clause based on the necessity of conglomerate reformation including prevention of giving work to affiliated company with favor and the party who opposed the clause based on the concern on possible hindrance to economic advance. Anyhow, the legal principle of usurpation of corporate opportunity has been introduced to the reality of our Commercial Code already. More detail studies on how we would interpret usurpation of corporate opportunity prohibition and what would be the application standard of it are future tasks.