상법상 이사의 충실의무에 관한 검토 － 자기거래 금지 위반에 관한 대법원 2016.8.24. 선고 2016다222453 판결의 평석을 겸하여 －

Abstract

Since the 1997 IMF financial crisis, we have been asked by inter- national organizations and peoples in all walks of life to improve corporate governance and strengthen duties and responsibilities of corporate directors. Accordingly, in December 1998, the Korean Commercial Act was revised, and Article 382-3 of the Korean Commercial Act newly provides that directors shall perform their duties in loyalty for the interest of the corporation in accordance with statutes and the articles of incorporation of the corporation. Even before this revision, the Korean Commercial Act provides that the relationship between the directors and the corporation is regarded as delegation, the directors owe a duty of care as is required of good managers to the corporation. Nevertheless, because the directors have a profound effect on the management of the corporation as well as the national and regional economy, the Korean Commercial Act introduced a duty of loyalty, which is originated and developed in an equity and/or the case laws of the United Kingdom and the United States of America, to strengthen duties and responsibilities of the directors. Despite these provision, the definition and standard of duty of loy- alty in the Korean Commercial Act has not yet been clearly established, and so article 382-3(duty of loyalty) of the Korean Commercial Act was not applied independently in practice. However, recently, the Supreme Court of Korea independently applied the article 382-3 concerning the director’s duty of loyalty, and stated whether there were any violations of duty of loyalty in the acts of directors. Therefore, in this paper, I will review the contents and standard of director’s duty of loyalty under the Korean Commercial Act, then examine the meaning of recent Supreme Court ruling, and finally present my opinion on the activation measures for article 382-3 concerning the director’s duty of loyalty.