미국법상 폐쇄적 기업에서의 경영자의 신인의무 및 강행법규성

Abstract

In a privately held firm the governing rules for internal management can be decided rather easily through reasonable negotiations among the partners (or shareholders) since they consist, in most cases, of a small number of shareholders who maintain close human relations among themselves. Therefore, the legal principles governing the fiduciary duties of the shareholders of a publicly-held corporation are deemed "not always appropriate" for those of a privately-held company. It is from this context that this study examines theories and judicial cases surrounding the provisions of the Revised Uniform Partnership Act (or RUPA) and the Delaware Revised Uniform Partnership Liability Act (or DRULPA) focusing on the concepts and details of the fiduciary obligations of shareholders that are used in publicly-held corporations operating in the United States and the extent to which they are enforced in practice. The study finds the following conclusions: First, the above mentioned laws treat the concept of the fiduciary duty of partners in rather limited ways. Under RUPA, for example, the manager of an association-type corporation is less limited in pursuing his or her own personal interest than other types of trustees. Second, the extent to which a specific law is actually enforced is rather subdued. For example, under RUPA fiduciary duties, especially the duty of loyalty, are considered enforceable; however, the same law regards certain acts or transactions as legally free from fiduciary duties in case their validity is granted specifically by statutory modifications agreed upon by the shareholders due to their peculiarity. On the other hand, DRULPA takes the approach of giving maximum effect to the enforceability of partnership agreements, which is quite different from the approach taken by other statutory laws, and the same law also acknowledges comprehensive exemption from fiduciary duties. It is noteworthy, however, that with the intent of protecting the expected benefits of the involved party, the case law of Delaware purporting to this takes a more cautious approach toward agreements exempting fiduciary duties without giving enough consideration even though they maintain the same concept as other statutory laws. The two approaches competing in the academic field are the so-called freedom of contract approach, which argues that fiduciary duties are non-enforceable in nature, and the patronal approach, which argues that fiduciary duties ought to be enforceable in order to protect the minority. Main stream scholars, however, seem to take a duel approach of agreeing with the contractual nature of fiduciary duties on the one hand and on the other agreeing on the need to maintain their enforceability to some extent, which is called the theory of limited freedom of contract.