2011년 개정 상법상 주식회사 이사의 자기거래에 있어서의 공정성 요건

The 2011 Korean Commercial Code Draft adopts a fairness test providing that a transaction is valid when both the director obtains Board of Directors' approval and the transaction is fair to the corporation,following an ideal that involves the allocation of power and the imposition of responsibility to reconcile any conflicts between the parties in a transaction. While it is not an adequate attempt to precisely define the concept of “fairness”, the vast majority of courts in the U.S., have stressed fairness both in substance and process. This article relates the concept of fairness of director self-dealing transactions under the U.S. corporate law and Korean Commercial Code. It also offers a comprehensive framework for understanding the variety of rules addressing self-dealing and suggests the most efficient solution suitable to all, although there's no possible optimal one. In the U.S., when courts are faced with an allegation that a manager has engaged in some behavior that would arguably violate the duty of loyalty in a self-dealing transaction, the court will measure the ‘fairness’of the transaction on both substantive and procedural grounds. Proof of fairness generally entails the same inquiry into process and substance,with the burden of proof on the defendants, as is the case with conflict-of-interest transactions generally. Substantive fairness focuses on a comparison of the fair market value of the transaction to the price the corporation actually paid, as well as the corporation's need for and ability to consummate the transaction. Procedural fairness whether through approval by disinterested directors or disinterested shareholders requires full disclosure of the existence of the interested director's conflict and other material information concerning the substance of the transaction. The Korean court should look both at the substance of the transaction to ensure that the firm received fair value, and at the process by which the transaction was approved, to ensure that the firm had the sufficient information needed to decide whether it should go forward with the information despite the putative conflict of interest. Moreover, the third party interest should be weighed carefully when the court invalidates a self-dealing transaction due to the lack of disinterested board approval.