경영권 승계와 이사의 의무 위반에 대한 소고: 대법원 2017. 9. 12. 선고 2015다70044 판결을 중심으로

Abstract

South Korea's “chaebol” have always been owned, controlled, and managed by the same family group. Today, chaebol operations form one of the most important issues with respect to how the succession of management rights works since these corporations are very powerful in making decisions and have the ability to control all aspects of management. The stockholders of each company owned and controlled by a chaebol's founding families have recently filed a suit in order to raise questions about the illegal processes whenever a chaebol's founding families try to grant management rights in terms of succession. The relevant regulations are Article 397(Prohibition of Competition), Article 398(Transactions between Directors, etc. and Company), and Article 397-2(Prohibition of Appropriation of Company's Opportunities and Assets) under the Korean Commercial Code. They are supposed to be based on the duty of loyalty, meaning that a director must act in good faith and with conscientiousness, fairness, morality, and honesty. However, a breach of the duty of loyalty can arise in various ways, and any breach will occur when a director acts in a manner that benefits himself/herself or certain others at the expense of the company. This article argues that one such breach case has occurred in the process of management succession within a chaebol. Furthermore, it is argued that the courts should more actively review this case by analyzing the Supreme Court Case 2015Da70044 along with several others.