개정상법상 회사기회 유용금지 조항에 관한 소고 － 경제민주화 논의와 관련하여 －

This paper reviews the provision of prohibiting usurpation of corporate opportunity of the revised Korean Commercial Code (hereinafter ‘KCC’). Recently there have been hot debates on democratic capitalism in Korea, which led to the many bills pending at the National Assembly in the name of democratic capitalism. Though controversies regarding the meaning of the democratic capitalism is still ongoing, the followings are generally understood as the core elements of it: prohibition of cross ownership, decentralization of economic power, separation of banks from commerce, restriction of unfair support practices by controlling shareholders or their family members.’To especially address the problem of unfair intercompany transaction- for example, the shinsegae family launched a bakery business which has an exclusive business with Shinsegae-, the revised KCC in 2011 introduced the misappropriation of corporate opportunities doctrine as a breach of duty of director or officer. Under Article 397-2 of the KCC, a director shall not usurp a business opportunity that may benefit the company now or in the future for his personal gain or to benefit a third party without the approval of the Board of Directors. However, a director may use such business opportunity for himself or for a third party where (i) the board of directors approves it by a two-thirds majority (ii) the company waives a business opportunity because it cannot financially afford to undertake it. To tackle this problem, the Monopoly Regulation and Fair Trade Law (hereinafter ‘MRFTL’) provides another regulatory tool. Article 23①(vii) of MRFTL prohibits the assisting practices of a specially related person or other corporations through providing excessive economic benefit by providing or transacting them with funds, assets, goods and human resources. Nevertheless, the meaning of the term “business opportunity itself is ambiguous, which will require the court to take careful approach on the corporate opportunity doctrine under the KCC. Even the current provision will still leave room for debate on how to effectively regulate the controlling shareholders or their family members usurping the corporate opportunities indirectly.