상법 제398조와 제542조의9의적용대상에 있어서의 상관관계 검토

Abstract

Under the Commercial Law amended 2011, when a person falling under any of the following subparagraphs intends to engage in a transaction with the company for his/her own account or for the account of a third party, he/she shall in advance disclose material facts of the transaction concerned at the board of directors and shall obtain approval therefrom. In such cases, the approval of the board of directors shall be made with 2/3 or more of the total number of the directors, and the transaction concerned shall be fair in terms of its particulars and procedures: 1) a director or a major shareholder under Article 542-8 (2) 6; 2) the spouse and lineal ascendents or descendents of a person falling under subparagraph 1; 3) lineal ascendents or descendents of the spouse of a person falling under subparagraph 1; 4) a company and its subsidiary, 50/100 or more of the total number of its issued and outstanding shares with voting rights are held by a person falling under any of subparagraphs 1 through 3, solely or jointly with others; 5) a company, 50/100 or more of the total number of its issued and outstanding shares with voting rights are held by a person falling under any of subparagraphs 1 through 3, together with a company falling under subparagraph 4(§398). No listed company, on the other hand, shall grant credit (referring to lease of property with economic value, including money, guarantees for the performance of obligations, purchase of securities intended for supporting funds, or other direct or indirect transactions determined by Presidential Decree accompanying credit risk on the transactions; hereafter the same shall apply in this Article) to or for a person who falls under any of the following subparagraphs: 1) major shareholders and their specially related persons; 2) directors (including persons who fall under any of the subparagraphs of Article 401-2 (1); hereafter the same shall apply in this Article) and executive directors; 3) auditors(§542-9(1)). In cases where a listed company determined by Presidential Decree based on the scale of assets, etc. intends to engage in transactions that fall under any of the following subparagraphs (excluding transactions prohibited under paragraph (1)) with or for the largest shareholder, his/her specially related persons, and such listed company’s specially related persons prescribed by Presidential Decree, the company shall obtain approval thereof from the board of directors: 1) cases where the scale of a single transaction exceeds the maximum scale determined by Presidential Decree; 2) cases where the total amount of transactions, including the relevant transactions with specified persons during the relevant business year, exceeds the amount determined by Presidential Decree(§542-9(3)). In this paper, I have investigated legal problems about the relationship between the Article 398 and the Article 542-9 under the Commercial Law. And I have proposed the reform measures for settlement of such legal problems of the mutual relation between §398 and §542-9 to improve efficiency of both Articles.