자기거래 대상과 그 유형의 확대에 대한 소고

Abstract

Recently, the Korean Commercial Code has been largely amended in order to promote free and transparent management of a company. The most debatable aspect of this amendment is considered to be the target and the type of Director’s self-dealing. According to the Article 397, 2, a director should be consented by two-thirds’ the board of directors, before he or she could appropriate corporate opportunities. This promulgation is fundamentally based on the American system, as its primary objective is to prevent directors and senior executives from taking corporate opportunities, which may be against the best interests of a company. The American Law Institute has introduced the Principles of Corporate Governance Analysis and Recommendation American Law Institute (“ALI”) and the related provisions of the Model Business Corporation Act. Therefore, together with the corporate opportunities doctrine, a range of parties under the effects of the newly created set of rules has been greatly expanded when a director contracts with a company in order to avoid a conflict of interest due to the Article 398. The first argument about the expansion of the parties including directors with regard to dealing with a company is that such an extension of the target is rather unique in Korea. Along with this expansion, it is now mandatory for a director to receive two-thirds of consent from the board of directors in order to seize corporate opportunities, which is hardly the case in other jurisdictions. It seems more than likely that how persuading two-thirds of the board of directors to agree with you could cause a lot of complications within the company. Furthermore, the language used in the provision, which was mostly borrowed from American cases and ALI, has invited disputes and controversies in various ways, due to its vagueness. The provision, having referred to American cases, has established some guides lines, such as “four tests” and many people expect that the Korean courts will face many difficulties in interpreting and applying the provisions to a Korean company,backgrounds of which are obviously different to an American company. As such, in this essay, its focus would be on the introduction of the American analysis on the corporate opportunities doctrine. Moreover, the effects of the self-dealing doctrine and corporate opportunities doctrine would be examined in further detail and it will be discussed as to whether the application of these legal principles should even be extended to controlling shareholders of a company.