주주전원동의에 의한 이사의 자기거래의 효력 - 대법원 2017. 8. 18. 선고 2015다5569 판결 -

Abstract

In this case, judgments are divided between court of appeal and supreme court on the plaintiff's argument that his or her liabilities to the defendant are not existing in the reason that a self-dealing without approval of board of directors is invalid. The court’s divided decisions are also same in the issue about whether or not all of the issued shares of the plaintiff company are legally transferred to the person, non-party to the suit. In this comment, the divided judgments between the supreme and appeal court are comparatively analyzed in relation to two legal issues in perspective of Commercial Law. First, legal principles on requirements for the share transfer and establishment of pledge right are summed-up and lots of legal reasons suggested by two different courts are reviewed and criticized. In short, the author agrees with the supreme’s holding on the first issue. Second, rules of director’s self-dealing under the article 398 of the Commercial Act are explained on the basis of legal theory and precedent cases. The supreme’s decision, in which shareholders’ unanimous consent in one-man company is legally substituted for the approval of board of directors, is harshly criticized in view of ideological background, distributional regime of power in the corporate organs, separation of corporate and its shareholder’s leal personality and shareholder’s limited liability under the corporation law. In conclusion, the author argues that the supreme’s decision on the effect of shareholder’s unanimous consent for director’s self-dealing should be reversed, particularly under the revised Commercial Act.