지배주주의 사익추구에 대한회사법과 경제법의 규제 분석

Abstract

This article aims to examine the appropriateness of the division of regulationsbetween the corporate Law and the economic law (hereafter referred to as the FairTrade Law) which regulate the pursuit of private benefits by controlling shareholders,and to suggest the ideas to fundamentally prevent controlling shareholders frompursuing private interests. It reviews the current regulatory regime against pursuing the private benefits in thecorporate law and the fair trade law, focusing on the prohibition against theusurpation of corporate opportunity and undue support for specially related persons asone of the unfair business practices in the context of economic democracy. Itexamines, subsequently, the problems pointed out by academia and civil society asloopholes of regulations in the two legal spheres to suppress the pursuit of privatebenefits of the controlling shareholders. It analyses the problems in the CommercialAct’s restriction on the usurpation of corporate opportunities (Sec. 397-2), thefiduciary duty of directors, the function of supervisory functions of outside directors,auditors or audit committee, and functions of minority shareholders’ rights, etc. Theissues pointed out as the problems of the regulation on the provision of unduebenefits for specially related persons in the fair trade law are reviewed. In particular,this article focuses on demonstrating that the corporate law mechanism andrecognition from a shareholder-centered perspective cannot effectively prevent the private interests of the controlling shareholder. Finally, in order to overcome thesefundamental limitations this paper proposes to introduce the corporate group lawsystem into the commercial law, which makes corporate law recognize the reasonableinternalization of the market within the corporate group, and ideologically to acceptthe stakeholder theory which views a company as a community.