자기거래제한규정의 적용요건에 관한 입법론적 재검토

Abstract

Under the Commercial Law amended 2011 which took effect on April 15, 2012, when a person(1. a director or a major shareholder under Article 542-8 (2) 6; 2. the spouse and lineal ascendents or descendents of a person falling under subparagraph 1; 3. lineal ascendents or descendents of the spouse of a person falling under subparagraph 1; 4. a company and its subsidiary, 50/100 or more of the total number of its issued and outstanding shares with voting rights are held by a person falling under any of subparagraphs 1 through 3, solely or jointly with others; 5. a company, 50/100 or more of the total number of its issued and outstanding shares with voting rights are held by a person falling under any of subparagraphs 1 through 3, together with a company falling under subparagraph 4) intends to engage in a transaction with the company for his/her own account or for the account of a third party, he/she shall in advance disclose material facts of the transaction concerned at the board of directors and shall obtain approval therefrom. In such cases, the approval of the board of directors shall be made with 2/3 or more of the total number of the directors, and the transaction concerned shall be fair in terms of its particulars and procedures(§398). In other words, the Article 398 requires prior approval of the board of directors for the self-dealing transactions. Unlike the previous Article 398 which required board approval only for the transactions with its directors, the amended Article 398 applies to the transactions with a far wider range of related persons, including a major shareholder(defined as having 10% or more of the outstanding voting stock or de facto influence on the management), his/her spouse, parents, and children, and companies where such persons own 50% or more of the outstanding voting stock. The amended Article 398 also requires “prior” approval by at least two-thirds of all incumbent directors upon full disclosure of the relevant facts, noting that the procedures and contents of such transactions must be “fair.” Such a strengthened regulation, coupled with the noticeable ambiguity in its language, is a source of serious complaints and various questions from businesses. There are, however, many legal and practical problems of application requirements on the self-dealing of directors etc. In this paper, thus, I have investigated the legal and practical problems of provision relating to application requirements on the self-dealing, and suggested the settlement methods of these problems of application requirements on the self-dealing under the Commercial Law in comparison with U.S.A., German and Japan. And this article attempts to provide a reasonable way of interpreting this seemingly draconian provision, based on a brief comparative overview and a review of cases and opinions which had been stably formed before the amendment.