개정상법의 회사기회 및 자산유용 금지규정에 관한 소고

On April 11th, 2011, the National Assembly of the Republic of Korea passed the revision of the Commercial Code, newly incorporating the restriction of usurping corporate opportunity and assets, which has initially aimed to prevent misappropriating corporate business opportunities by board of directors, highly ranked officers, and controlling shareholders. The corporate opportunity doctrine is a part of the duty of loyalty of the fiduciary duty, and Korea is one of frontier countries to enact the doctrine. Therefore, the revision of commercial law incorporating the corporate opportunity doctrine enables the duty of loyalty to be better organized in the Korean Commercial Code. This new statute, however, has some deficits to achieve its initial aim. 1. Omission of the use of corporate assets part: Despite the title of the provision itself, we cannot locate any contents on the restriction of use of corporate assets. 2. Ambiguous definition of ‘the BoD (Board of Directors) director who has rejected the corporate opportunity’: The author assumes two meanings of ‘the director’ from the provision, and he views that he/ she is a director who discretionary approves usurpation of corporate opportunity, or adds and abuts it even if himself/ herself is not the actor. 3. Exclusion of retired director: The statute only covers incumbent directors, not retirees. Considering that he/ she who intends to usurp corporate opportunity may resign from his/ her directorship to avoid the liability, the author insists the statute should also cover the retired directors. 4. Exclusion of controlling shareholder: The author views that the act well covers directors and highly ranked officers for the subject, but not controlling shareholders. The Commercial Code section 397-2 explicitly provides regulation on board members and highly ranked officers (CEO,CFO, CLO, etc), but not on controlling shareholders. Therefore, a controlling shareholder not sitting in the Board may misappropriate corporate opportunities.