상법상 회사기회유용금지법리

Abstract

The Corporate Opportunity Doctrine is a kind of the duty of a fiduciary to act with loyalty to her or his principal. Directors of a corporation should do their utmost good faith in their relations with the corporation that they represent. So if a director appropriates or diverts a corporate opportunity for her or his own personal benefit, she or he should pay the corporate her or his benefit in damages. Korean Commercial Code Article 397-2 provides the prohibition of appropriation of a corporate’s opportunities. This article was recently inserted by the amended act No. 10600, on Apr. 14, 2011 and it was modeled on U.S. case laws. Generally speaking, courts determine whether a corporate opportunity was usurped by examining the facts of each particular case. However, to find corporate opportunities, U.S. courts have chosen various tests such as whether a business opportunity is in the line of the corporation’s business and is of practical advantage to it, whether a business opportunity is one in which the corporation has an interest or a reasonable expectancy, or whether a corporate fiduciary has usurped a corporate opportunity and thus that the corporate transaction in which she or he has entered is not fair and reasonable to the corporation. In Hyundai Glovis case and Shinsegae Department Store case, the transactions at issue had happened before the Amended KCC's Article on prohibition against appropriation of corporate’s opportunities was in effect. Nevertheless, the courts acknowledged that a bar against the appropriation of a corporate opportunity could be derived from the duty of care or duty of loyalty. However the both courts denied business opportunities that the defendants appropriated were the corporate’s opportunities because they were not realistic and specific. So it matters when a business opportunity could be a corporate opportunity. KCC Article 397-2(1) admits a corporate opportunity in 1) a business opportunity that has become known to the director in the course of performing her or his duty, or a business opportunity taking advantage of information of the corporation; or 2) a business opportunity closely related to the business that is being currently conducted or is to be conducted by the corporation. I suggest to impose duty not to appropriate corporate’s opportunities on the de facto directors who instruct another person to conduct business through legislation. If two thirds or more of the total number of directors approve a director’s appropriation of the corporate’s opportunities without prominent irrationality, the business judgment of the board of directors to make the transaction legal should be respected. But the rationality of the approval depends on whether it would be just and reasonable to the corporate. Additionally, I suggest the legislature that the director who approved a director’s accepting the corporate’s opportunities as a member of the board of directors shall not be liable for the damage that incurred to the corporate and that not only the board of directors but also the general meeting of shareholders should be allowed to approve a director’s accepting the corporate’s opportunities. The former suggestion has basis in that it is not fair to impose the actively usurping director and the passively approving director the same liability. And the latter suggestion has ground on that the shareholders themselves are the owner of the corporate who bears the damage incurred by a director’s appropriation of corporate’s opportunities.