회사의 사업기회를 유용한 이사의 자기거래의 금지 - 개정상법안제398조제(3)항의 법리 구성 및 입법론적 검토 -

Corporate opportunity doctrine is to be legislated in Korea through Ammendment Draft Article 398(3) of Korean Commercial Law(including corporate statutes) which is now under examination of the Korean Congress. This essay is focused on the legal analysis of the corporate opportunity doctrine through the comparative approach, especially through the analysis of American corporate opportunity doctrine that is composed by the original statute on the corporate opportunity and legislative review of the new Draft article 398(3). Different point in the legislative style from the American statute on the corporate opportunity is that the statute of corporate opportunity is to be legislated on the Commercial Code(including corporate law) as one component of some behavior types of Director's self-dealing. One of the problem which may be issued from such style of legislation is as follows. Firstly the confusion of legal theories from the legislative consolidation of two different and separate legal systems. Secondly no consideration of the fact that the illegal effects between two duties are different although director's self-dealing doctrine and corporate opportunity doctrine are same type of director's loyal duties. In the Amendment Draft Article 398(3) of Korean Commercial Law(including corporate statutes), all of the corporations are to be treated same without their size and corporate governance(close company and public company). But there should be different rules for different corporations. For examples, different rules between small size close corporations and big size public corporations, between full time directors and outside directors, and between parents corporations and others. And also the corporate opportunity doctrine should be extended to apply to the controlling shareholders.