회사와 그 지배자 간 거래의 공정성 판단기준에 관한 고찰 - 대법원 2009. 5. 29. 선고 2007도4949 전원합의체 판결에 대한 비판 -

Abstract

Our market economy is based legally on the freedom of contracts. This means that 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. If he deals with the corporation in pursuit of his own interest, the conflict of interest aries. The same problems aries with shareholder who actually controls the corporation and its management. We cannot expect an arm's length transaction between the corporation and its controller. So we should address the controller's transaction in a strict standard. The standard is the entire fairness which includes fair dealing and fair price. Recently, the Supreme Court delivered a decision in Samsung group case in which the implication of controller's transaction exists. A company in the group issued the convertible bonds at far less convertible price compared with the share's real value. In that case the company provided a preemptive rights to its existing shareholders, corporations and individuals, which were also under the control of the controller. However, most of the shareholders didn't exercise the rights. The Court said that in case the preemptive rights are offered, the directors have the discretion to offer the bonds to whomever at same price as originally offered to shareholders. Because the director is only the fiduciary of the corporation, not of shareholders, the Court continued, the directors does not owe any duty to prevent the dilution of existing shareholders. This article proves that the directors are the fiduciaries not only of the corporation but also of the shareholders, and that the issuing of the bond to the affiliate of controller should be dealt with strict standard, and further analyses the Samsung case.