회사기회유용의 적용요건과 입법에 대한 검토

Abstract

Under the Korean corporate law, the usurpation of corporate opportunity has not properly regulated and legal principles concerning usurpation of corporate opportunity are also insufficient. Lately the Ministry of Justice in Korea tries to introduce the corporate opportunity doctrine into the Commercial Code. But the reform proposal limited the range of corporate opportunity doctrine to self-dealing transactions between corporation and a third party under the guidance of the director. In this study, on the basis of the U.S. case laws, ALI's Principles of Corporate Governance, I try to examine what statute is appropriated for usurpation of corporate opportunity in Korea and I propose a model corporate opportunity statute. The doctrine of corporate opportunities provides that corporate fiduciaries cannot divert and exploit for their own benefit any opportunity that should be deemed an asset of the corporation. The major difficulty in this area is in distinguishing between those business opportunities that belong to the corporation and those in which the corporate interest is insufficient to require any prohibition against the fiduciary's individual appropriation of the opportunity. The U.S. courts have applied a variety of tests in assessing whether a particular opportunity belongs to the corporation. The most commonly applied tests are whether the opportunity falls within the corporation's “line of business” and whether the corporation has a tangible interest or expectancy in the opportunity and whether upon the particular facts, the fiduciary's taking of the opportunity was fair. And fiduciaries may claim that they should be absolved from liability under the corporate opportunity doctrine because the business consented to a taking, either in individual cases, or categorically through ex ante blanket consent, the taking of the opportunity was fair to the business, the business was legally unable to exploit the opportunity when it was presented, or a third party refused to deal with the fiduciary's business, the business was financially unable to exploit the opportunity when it was presented to the fiduciary or the opportunity was presented to the fiduciary in his individual, as opposed to his official corporate capacity. Although a fiduciary may assert several defenses in response to corporate opportunity claims,these defenses have been recognized or rejected in jurisdictions. The American Law Institute approach to corporate opportunity, promulgated in 1994, also borrows substantially from the Guth test. The principal feature of the ALI test is its strict requirement that the fiduciary disclose a potential corporate opportunity to his business. Under the ALI test, the party challenging the taking of an opportunity has the initial burden of proving the existence of the corporate opportunity. In my study of the corporate opportunity, I suggest a model corporate opportunity statute. This proposed statute retains obvious test for establishing the existence of a corporate opportunity like line of business test and provides that the fiduciary may use a corporate opportunity if the business consented to the taking before the fiduciary proceeded or the business was not financially able to take the opportunity when it arose. Moreover the proposed statute contains that it is also applied to controlling shareholders and outside directors are responsible for only specific context. And if a fiduciary is found to have usurped a corporate opportunity, the proposed statute will impose a effect like constructive trust in favor of the corporation, thereby denying to the fiduciary any profits obtained as a result of his breach of duty