회사기회유용이론 -밀러 사건의 2단계 기준을 중심으로-

Since 1900, the corporate opportunity doctrine (hereinafter COD) has been debated and several standards of the COD such as interest or expectancy test, line of business test, fairness test and two-step test, were introduced in the United States. Now the COD is still debated in the United States. The COD refers to the principle of common law, which directors, officers, workers or majority shareholders of the company concerned (hereinafter Directors) are not allowed to usurp the opportunity in the company that they belong to. Recently, there are also some debates on the COD in Korea. However, the act on the COD was not legislated into the Korean Commercial Code. Because the amounts related to the COD in Korea are almost 2.5 trillion won, the discussion of the COD is to be continued very deeply. In this sense, the author examines and analyzes the case of Miller (hereinafter Miller) which introduced the two-step test in 1974 for the legislation of the COD in the future in Korea. The Miller is based on the two-step process, which the first step is whether the opportunity is the opportunity of the company concerned by means of the line of business test and the second step is whether the exploitation is not unfair by means of the fairness test. If the first step is not passed, the second step is not considered. Moreover, while the burden of proof in the first step is upon the party attacking exploitation of the opportunity, the burden of proof in the second step is upon the Directors. Because the Miller divides the same case into two different processes, there are some problems, such as the double application of the line of business test and overlaps between the first step and the second step. Even though there are some drawbacks in the two-step test, the methodology of the Miller’s court of the two-step test is a model lesson for the Korean legal system because the Miller’s court recognizes the problems of several standards of the COD and tries to mix the line of business test and the fairness test. Korea needs to blend several standards of the COD for the far more developed legislation when she tries to legislate for the act on the COD. The author’s recommendation in order to legislate for the sophisticated act is to group some factors for the determination of the COD into some defenses, such as the disclosure & fairness defenses, and the consent or authorization defenses. Therefore, the author agrees to the decision of the Miller’s court, but disagrees to the process to determine the COD. The process to determine the COD has to be substituted for some defenses and the COD shall be determined by an undivided process, such as interest or expectancy test, line of business test, and fairness test. The defenses to determine the COD is continued to be studied in the future.