韓国法における利益相反取引の制限

Abstract

In Korea, self-dealing is formulated more diversely by controlling shareholders and the affiliate people than by directors, and conflicts of interest transaction with overlapping self-dealing and usurpation of corporate opportunity are increasing, but the standards and precedents to embrace it have not been accumulated yet. Controlling shareholders are particularly a potent political influence because coalitions of large shareholders control most listed companies. For these reasons, the revised Commercial Act of 2011 expanded the regulations of self-dealing subject which includes controlling shareholders and their affiliate people and reinforced approval criteria with the board of directors. By stipulating prior approval of board and adopting substantive fairness requirements, the revised Commercial Act could reinforce company’s internal control and protect company’s profit from the unfair transaction between company and directors. However, the regulations have been revised without a thorough discussion from a political perspective, which leaves pressing needs for a doctrinal research. The issue is that while self-dealing is strictly regulated under the Korean Revised Commercial Act compared to other countries. But in practice the transaction would rarely become effective, or insiders of listed companies would rarely bear the considerable liability for damages. Especially, as self-dealing still occurs frequently in corporate groups, the regulations for conflicts of interest transaction are highly required but are low in effectiveness. Therefore, I seek to examine the matter in a larger perspective than in the discussion of traditional regulations of self-dealing. I follow an emerging tendency in comparative legal research by giving a highly integrated view on the regulation of self-dealing that provides a clear framework. In this article, after reviewing the revision background of article 398, I would examine the issues which include the expansion of the law application subject, approval criteria in the board of directors and substantive fairness, and suggest legislative measures in order to resolve these problems.