이사의 자기거래에 관한 소고

Abstract

A director dealing with a corporation could be concerned with his or a third party's interests over a corporation's. However every dealing does not have negative effects on a corporation. For instance, a dealing with a director could be temporally and economically beneficial. Thus the Commercial Code stipulates that a dealing between a director and a corporation subject to approval by corporation, rather than prohibiting overall dealings. Obviously the Commercial Code, in principle, forbids a dealing which becomes a burden to a corporation. The wholesomeness of corporation asset is important to corporation's creditors in the same way as shareholders or a corporation. Accordingly directors'self-dealing should be taken into consideration for the purpose of protecting corporation's creditors as well as interests of shareholders or a corporation. The law provides that a director is the object of regulation differently than does, in prohibited granting of credit, a director covering a director of business management is regulated. Considering, however, it's formidable to show that a director exerted his influence notwithstanding a conflict of interest, a director of business management should be given an approval by a corporation for a dealing with a corporation. Although the law exceptionally permits prohibited granting of credit, an approval by a corporation is necessary, in that the act concerned shall be decided on the basis of the wholesomeness of corporation asset. The corporate division under the Commercial Code is characteristically mandatory. Thus a self-dealing subject to approval by the board of directors by law is not allowed to be under the authority of a general meeting of shareholders or other organization by making changes in the articles of association, or by consent of every shareholder, and that is only the board of directors can exercise the authority of approval. A director dealing with a corporation shall call a meeting of the board of directors and give all information related to the problem of conflict of interests so that the board can decided whether the dealing is permitted and a fair dealing can be made. A director's self-dealing in breach of the provision under the Commercial Code is invalid, but in the event of a bona-fide third party, the dealing is valid unless his malice is proved.