이사의 의무에 관한 일본의 법체계와 우리나라에의 시사점

Abstract

In general, when a company gains profit, shareholders also benefit through an increase in stock value or dividends to shareholders. Therefore, even under the principle of maximizing shareholder profit, it can be acceptable for directors to perform their duties with the companyʼs interests in mind. A representative example is when a director negotiates with the acquirer on purchase terms, such as the purchase price, in cases of tender offers or organizational restructuring. In such cases, protecting shareholder interests is considered an important task for facilitating desirable organizational restructuring, which holds significant meaning from the perspective of growth strategies and efficient resource reallocation. Based on the above, this article explores Japanʼs legal system, its interpretive theories, and case law to contribute to addressing the question: ʻWhat is the most appropriate way to regulate directorsʼ duties to protect shareholder interests?Japan also shared a similar awareness of this issue and primarily responded through interpretive theories concerning directorsʼ duties. Japanʼs interpretive theories and case law indicate that directorsʼ duties toward shareholders are understood to be naturally derived from the existing legal framework, such as the duty of loyalty owed to the company. There was a profit-driven purpose unique to the company behind it. The profitability of a company goes beyond simply pursuing gains through external business activities; it envisions distributing those profits among its members as well. From this, in Japan, ʻfor the companyʼ has also come to be understood as meaning maximizing the interests of shareholders as much as possible. Meanwhile, in Japan, there was also consideration of what level of duty directors should appropriately owe to shareholders. If this duty is not required above a certain level, the protection of shareholder interests may be insufficient. However, if it is enforced too strictly, it could not only constrain the overall business judgment of directors but also potentially conflict with current practices—such as the growing adoption of ESG-related practices—or with societal norms. In Japan, academic theories and case law have imposed duties on directors toward shareholders but have shown a degree of consideration regarding the extent of these duties (such as by rejecting an obligation to maximize share prices), which offers implications for Korea. In Japan, discussions were underway not only on expanding and clarifying directorsʼ duties but also on measures to mitigate directorsʼ liabilities. This is based on the idea that securing the companyʼs interests should not rely solely on strengthening directorsʼ duties but rather on finding a balance between their duties and liabilities to encourage proactive management.