개정 상법 제398조의 자기거래에 있어서 공정성 요건에 관한 연구

Abstract

This article deals with the self-dealing transaction between the director and the corporation under the Revised Commercial Code of 2011. Fairness of transactions can be achieved by each individual acting on his own best interest. But this principle is not workable in case where one person actually occupies both side of the transaction. A director of a corporation is a fiduciary of the corporation and its shareholder. The duty of loyalty requires a fiduciary to act in the best interests of the corporation. Conflict of interest usually involves some form of self-dealing where the fiduciary is on both sides of transaction and in a position to receive a benefit unavailable to other shareholders or a corporation. Under Corporate law, Fairness is the key element. In the most states, the important method of defending a self-dealing transaction is by showing that it is, under all the circumstances, fair to the corporation. In nearly all states, fairness alone will cause the transaction to be upheld, even if there has been no approval by disinterested directors and no ratification by shareholders. While it is not an adequate attempt to define the concept of “fairness”, the courts in the U.S. have stressed fairness both in substance and process. This article relates the concept of fairness of director self-dealing transactions under the Revised Korean Commercial Code. Procedural fairness whether through approval by disinterested directors or disinterested shareholders requires full disclosure of the existence of the interested director's conflict and other material information concerning the substance of the transaction.