회사기회유용이론의 적용기준과 항변사유* - 미국법제를 중심으로 -

Abstract

Recently, several cases on the Corporate Opportunity Doctrine (hereinafter COD) have been reported by a non-governmental organization (hereinafter NGO) in Korea. However, there are several problems to settle the COD in Korea because the Korea Commercial Code (hereinafter KCC) does note have any provision on the COD except for the several provisions on the fiduciary duty including duty and loyalty of care. In this sense, the provisions for the COD in the KCC need to be adopted in the very near future as follows: There are some applicable standards for the COD such as the interest or expectancy test, the line of business test, the fairness test and two-step test in the United States. In particular, even though the line of business test is the leading test for the COD, it has several draw backs (e.g., vagueness of the scope of business). As a result, the author reviews the applicable standards for the COD and alleges that there is the need to update the applicable standards in order to apply to the COD properly for the Korean legal system. These applicable standards for the COD are based on the defenses such as the disclosure & fairness defenses, and the consent or authorization defenses. The author examines several debated defenses rested on some leading cases and articles released in the United States and also tries to apply the results of the examination to the Korean legal system in the future. As a result, the disclosure defense, the consent defense, the corporation’s non-financial capacity defense, the non-legal capacity defense, the special agreement defense, and the non-line of business defense are of useful to the applicable standards for the COD in the Korean legal system. On the other hand, the fairness defense and the authorization defense will be allowed as defenses of the applicable standards for the COD only when the fairness in the causes of the delayed disclosure to the corporation concerned exists. However, the individual capacity defense and the non-interest or non-expectancy defense are not allowed as defenses of the applicable standards for the COD because there is in danger to be faked in the former and the latter is examined in the non-line of business defense. Therefore, there is the need to be continued to examine cases and articles on the COD focused on both the applicable standards and defenses for the Korean legal system in the near future.