회사기회유용에 관한 영국과 독일의 법리 연구
Corporate Opportunity Doctrines in UK and Germany
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Article 397-2 of the Korean Commercial Code was drafted under heavy influence of the corporate opportunity doctrine of US law. It produced among Korean lawyers and legal scholars considerable interest in US law regarding corporate opportunity, but it remained out of notice that other jurisdictions also have faced similar issues and developed laws functionally equivalent to the corporate opportunity doctrine of US. This paper summarizes and analyzes laws of UK and Germany regarding corporate opportunity and compares them with Korean law as well as US law from a comparative perspective. As a result of the review of UK and German law, we found that both jurisdictions more and more easily recognize existence of corporate opportunity. Such a tendency is in line with the “line of business” test of the US law and the broad definition of corporate opportunity under Article 397-2 of the Korean Commercial Code. We also found that both jurisdictions were converging to the model that the board of directors is entitled to authorize or approve the usurpation of the corporate opportunity. UK law made statutory grounds for such a board approval in 2006 Companies Act, and German law leads to a similar conclusion by analogously applying the provisions in its corporate law on the non-competition obligation of directors. Review of UK and German law reveals more similarities than differences between themselves. Also, such a review reveals more similarities and convergence than differences and divergence vis-a-vis other jurisdictions including US and Korea in terms of the elements of corporate opportunity as well as procedures for legitimate utilization of the opportunity.
Abstract
Article 397-2 of the Korean Commercial Code was drafted under heavy influence of the corporate opportunity doctrine of US law. It produced among Korean lawyers and legal scholars considerable interest in US law regarding corporate opportunity, but it remained out of notice that other jurisdictions also have faced similar issues and developed laws functionally equivalent to the corporate opportunity doctrine of US. This paper summarizes and analyzes laws of UK and Germany regarding corporate opportunity and compares them with Korean law as well as US law from a comparative perspective. As a result of the review of UK and German law, we found that both jurisdictions more and more easily recognize existence of corporate opportunity. Such a tendency is in line with the “line of business” test of the US law and the broad definition of corporate opportunity under Article 397-2 of the Korean Commercial Code. We also found that both jurisdictions were converging to the model that the board of directors is entitled to authorize or approve the usurpation of the corporate opportunity. UK law made statutory grounds for such a board approval in 2006 Companies Act, and German law leads to a similar conclusion by analogously applying the provisions in its corporate law on the non-competition obligation of directors. Review of UK and German law reveals more similarities than differences between themselves. Also, such a review reveals more similarities and convergence than differences and divergence vis-a-vis other jurisdictions including US and Korea in terms of the elements of corporate opportunity as well as procedures for legitimate utilization of the opportunity.
참고문헌 (22)
- 강태훈, "회사기회 유용금지의 법리에 관한 연구 : 미국 판례의 발전과 우리 상법의 해석을 중심으로", 박사, 법학과, pp.2013
- 이윤석, "회사기회유용금지에 관한 법적 연구", 박사, 법학, pp.2008
- 천경훈, "개정상법상 회사기회유용 금지규정의 해석론 연구", 상사법연구, 30(2), pp.143~213 (2011), 한국상사법학회
- John Armour, "Corporate Opportunities: If in Doubt, Disclose (But How?)", Cambridge Law Journal, 63(1) (2004)
- Victor Brudney, "A New Look at Corporate Opportunities,”", 94 Harv. L. Rev, 997 (1981)
- Bryan Clark, "UK Company Law Reform and Directors' Exploitation of Corporate Opportunities", I.C.C.L.R., 17(8) (2006)
- Paul L. Davies, "Gower and Davies’ Principles of Modern Company Law" (2012), Sweet&Maxwell
- Rod Edmunds, "The No Conflict-No Profit Rules and the Corporate Fiduciary: Challenging the Orthodoxy of Absolutism", J.B.L. 2000, MAR (2000)
- Hans C. Hirt, "The Law on Corporate Opportunities in the Court of Appeal: Re Bhullar Bros Ltd", J.B.L. 2005 (2005)
- David Kershaw, "Lost in Translation: Corporate Opportunities in Comparative Perspective", Oxford Journal of Legal Studies, 25(603) (2005)
- Pearlie Koh, "Once a Director, Always a Fiduciary?", Cambridge Law Journal, 62(2) (2003)
- Jie Li, "The Peso Silver Case: An Opportunity to Soften the Rigid Approach of the English Courts on the Problem of Corporate Opportunity", Company Law 2011, 32(3) (2011)
- Thomas E. Abeltshauser, "Leitungshaftung im Kapitalgesellschaftsrecht: Zu den Sorgfalts- und Loyalitätspflichten von Unternehmensleitern im deutschen und im US-amerikanischen Kapitalgesellschaftsrecht" (1998), Carl Heymanns Verlag KG
- Holger Fleischer, "Gelöste und ungelöste Probleme der gesellschaftsrechtlichen Geschäftschancenlehre", NZG, ~ (2003)
- Klaus J. Hopt, "Großkommentar AktG" (1999)
- Notker Polley, "Wettbewerbsverbot und Geschäftschancenlehre" (1993), Nomos Recht
- Andreas Reinhardt, "Interessenkonflikte bei der privaten Wahrnehmung von Geschäftschancen im US-amerikanischen und deutschen Gesellschaftsrecht" (1994)
- Rainer Salfeld, "Wettbewerbsverbote im Gesellschaftsrecht", Peter Lang (1987)
- Karsten Schmidt, "Aktiengesetz Kommentar (2. Auflage)" (2010), Verlag Dr. Otto Schmidt
- Fabian Tross, "Geschäftschancen in der GmbH: Geschäftschancenlehre und Corporate Opportunities" (2008), Vdm Verlag
- Johannes Weisser, "Corporate Opportunities" (1991), Carl Heymanns Verlag KG
- Christine Windbichler, "Gesellschaftsrecht (22. Aufl.)" (2009), Verlag C.H. Beck