이사의 충실의무에 관한 논쟁

Abstract

In response to the complaints of minority investors who suffered losses when LG Chem went through a spin-off in 2020 and listed a new company, LG Energy Solutions, after the spin-off, the candidates for the 20th presidential election have made several pledges to protect minority shareholders in the event of a spin-off. In addition, a revision bill was submitted to the National Assembly to change the provision in Article 382-3 of the Commercial Act, “Directors shall faithfully perform their duties for the company in accordance with the provisions of laws and the articles of incorporation,” to “Directors shall faithfully perform their duties for the ‘proportional interests of shareholders’ and the company in accordance with the provisions of laws and the articles of incorporation.” There is also a proposal to revise Article 382-3 of the Commercial Act to “Directors shall faithfully perform their duties for the company and all shareholders in accordance with the provisions of laws and the articles of incorporation.” This article first explores the problems of physical division that have led to the discussion of the revision of directors' duty of loyalty, and then examines the arguments in favor of and against the proposed revision to expand and reorganize directors' duty of loyalty under the Commercial Act. The proposed amendments to the Commercial Code raise the issue of protecting minority shareholders who are harmed during a company's restructuring process, such as a physical division, and it is understandable that Article 382-3 of the Commercial Code on the duty of loyalty is not a golden rule and can be amended. The problem lies in how to revise it. Even if it is revised, consistency with other regulations must be considered. As indicated in the reason for proposing the revision, the subject of the duty of care is the company, and in the case of the duty of loyalty, the company and shareholders, so the cart is turned and there is conflict and contradiction between the two. Therefore, it is difficult to accept the revision without resolving this issue. The phrases ‘for the proportional interests of shareholders’ and ‘for all shareholders’ in the revision also have several problems. First, since the exact meaning of ‘proportional interests of shareholders’ is unclear, if it is placed in the general provision of the duty of loyalty of directors, it can only increase the controversy over the meaning of ‘loyalty’, which is an uncertain concept, and the interpretation. If it means the equity value according to the shareholder’s stock ownership ratio, it is already reflected in the principle of shareholder equality under the corporate law. In addition, the proportional interests of shareholders (shareholder rights) are protected by the duty of care and duty of loyalty of directors, so they do not have much meaning. ‘proportional interests of shareholders’ or ‘total shareholders’ are nothing more than an afterthought. In relation to this, this article argues that it is time to consider a measure to recognize the duty of loyalty of controlling shareholders, which is already recognized by case law or legislation in the United States, Germany, Japan, etc. At the same time, the awareness and efforts of the political circles, legislature, judiciary, supervisory agencies, shareholders and companies for the advancement of legal culture should be accompanied.