이사의 자기거래와 공정성 요건

Abstract

This article deals with the self-dealing transaction between the director and the corporation under American corporate law and Korea Commercial Act(KCA) focusing on the fairness requirement. 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. The key aspect of self-dealing transaction is that the director and the corporation are on opposite sides of the transaction. More precisely, the transaction is concerned when three conditions are met: (1) the director and the corporation are on opposite sides; (2) the director has helped influence the transaction's decision to enter the transaction; and (3) the director's personal financial interests are at least potentially in conflict with the financial interests of the corporation, to such a degree that there is reason to doubt whether the director is necessarily motivated to act in the corporation's best interests. Article 398 of KCA provides that a director may effectuate a transaction with the company for his own account or for account of a third person only if he has obtained the approval of the board of directors. Under American corporate law, fairness is really the key element. There is greater judicial scrutiny of both the fairness of the process and the substance of the transaction. In most states, the important method of defending a self-dealing transaction against attack 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. When fairness is what really counts, there is still some practical benefit to the approval, a benefit which stems from standards of proof and the burden of proof. The burden of proof shifts when there has been director or shareholder approval. without such approval, the burden of proof is clearly on the director to show why the transaction is fair. Once there has been disinterested-director approval or shareholder approval, the burden shifts to the person who is attacking the transaction, who must now come forward with evidence of the transaction's unfairness. The draft of the revised KCA adopted a fairness test providing that the transaction is effectuated when the director has obtained the approval of the board of directors and the transaction is fair to the corporation. The shift of burden of proof employed by the U.S. courts is likely to have a great influence on interpretation of the KCA's fairness requirement.