會社機會 法理의 導入에 관한 比較法的 考察

Abstract

In the United States, corporate opportunity doctrine aims at protecting the interests of the corporation by imposing on its fiduciaries such as directors, officers and controlling shareholders the duty of not usurping for their own benefits any business opportunities belonging to the corporation. It is difficult to define the concept of corporate opportunity because of the fact-intensive nature of corporate opportunity doctrine. And many tests have developed for determining whether the fiduciaries of the corporation misappropriate corporate opportunities, for example, the interest or expectancy test, the line of business test, the fairness test and the two-step analysis. In Korea, the Ministry of Justice tries to introduce corporate opportunity doctrine into the Commercial Code and the new version of the reform proposal was presented to the National Assembly. However, the new version of the reform proposal has some problems to solve and this article makes some suggestions as follows: First, corporate opportunity doctrine is applied to controlling shareholders as well as directors and officers because there are some cases in which controlling shareholders misappropriate corporate opportunities in these days. Second, requirements for procedural fairness in taking corporate opportunities and requirements for substantial fairness in using corporate opportunities are provided rather than written provisions regarding the definition and scope of corporate opportunities. Third, rules of remedies for returning unfair profits are provided besides indemnification for damages. Fourth, rules of the burden of proof are provided. Finally, the definition of usurping corporate opportunities is not limited within the definition of self-dealing because there is difference between the two definitions.