상법상 이사의 충실의무와 회사기회유용금지에 관한 재고(再考)

Abstract

In modern corporate relations, corporate conglomeration is promoted in various forms, and there are many cases where companies dispatch directors to their subsidiaries or affiliates and appoint them as representative directors(forming a relationship of control and subordination). Accordingly, in corporate groups, the opportunities for directors to perform duties on behalf of (or on behalf of) other companies in the group increase. However, if they misuse “business opportunities utilizing information about the company obtained in the course of performing their duties” or “business opportunities closely related to the company’s business” for businesses that prioritize their own interests or those of third parties, the company will suffer a great loss. This would be a breach of duty of loyalty for a director who is obligated to seek the best interests of the company. The question of what obligations a director of a company has toward the company lies in the direction in which the basic legal relationship between the company and the director should be regulated. Since the Commercial Act provides that the provisions on delegation shall apply to the relationship between the two, the general duty of a director toward the company is the duty of care as a prudent manager, which can be said to be the basic duty in a delegation relationship. Recently, as we enter the era of global competition, the authority of directors centered on the board of directors has become significantly stronger than that of the general meeting of shareholders, which can be said to be the highest decision-making body. In response, the need to increase the duties and responsibilities of directors to improve sound corporate management and faithful performance of duties is increasing. Accordingly, the Commercial Act introduced the duty of loyalty for directors. This clearly states that directors have the duty to faithfully perform their duties in accordance with the provisions of laws and the articles of incorporation. If a person who owes a duty of good faith to the company misuses a business opportunity that should belong to the company, it constitutes a breach of duty (breach of duty of loyalty) toward the company. It should be interpreted that the person who owes this duty of good faith includes not only the directors or managers, but also the controlling shareholder who has absolute influence over the company's management. In this regard, the need to strictly regulate them is clear even if we only look at the situations occurring within corporate groups. In short, the most important aspect of the duty of loyalty imposed on a director is that whenever there is a conflict between his personal interests and his duties to the company, he must never allow the latter to be subordinated to the former.In modern corporate relations, corporate conglomeration is promoted in various forms, and there are many cases where companies dispatch directors to their subsidiaries or affiliates and appoint them as representative directors(forming a relationship of control and subordination). Accordingly, in corporate groups, the opportunities for directors to perform duties on behalf of (or on behalf of) other companies in the group increase. However, if they misuse “business opportunities utilizing information about the company obtained in the course of performing their duties” or “business opportunities closely related to the company’s business” for businesses that prioritize their own interests or those of third parties, the company will suffer a great loss. This would be a breach of duty of loyalty for a director who is obligated to seek the best interests of the company. The question of what obligations a director of a company has toward the company lies in the direction in which the basic legal relationship between the company and the director should be regulated. Since the Commercial Act provides that the provisions on delegation shall apply to the relationship between the two, the general duty of a director toward the company is the duty of care as a prudent manager, which can be said to be the basic duty in a delegation relationship. Recently, as we enter the era of global competition, the authority of directors centered on the board of directors has become significantly stronger than that of the general meeting of shareholders, which can be said to be the highest decision-making body. In response, the need to increase the duties and responsibilities of directors to improve sound corporate management and faithful performance of duties is increasing. Accordingly, the Commercial Act introduced the duty of loyalty for directors. This clearly states that directors have the duty to faithfully perform their duties in accordance with the provisions of laws and the articles of incorporation. If a person who owes a duty of good faith to the company misuses a business opportunity that should belong to the company, it constitutes a breach of duty (breach of duty of loyalty) toward the company. It should be interpreted that the person who owes this duty of good faith includes not only the directors or managers, but also the controlling shareholder who has absolute influence over the company's management. In this regard, the need to strictly regulate them is clear even if we only look at the situations occurring within corporate groups. In short, the most important aspect of the duty of loyalty imposed on a director is that whenever there is a conflict between his personal interests and his duties to the company, he must never allow the latter to be subordinated to the former.