기업집단내 내부거래에 관한 연구 - 2011년 개정상법을 중심으로 -

Admits a fiduciary duty to the controlling shareholder if the controllingshareholder to exercise control over operations company traditionally in theUnited States. However, fiduciary duty of the parent company is not meansthat the parent company can not pursue private interests the internaltransaction in corporate group. The parent company must be taken intoaccount at the same time profit of minority shareholders and the interests ofthe subsidiary to exercise their rights. By using various criteria, including theentire fairness standard in order to ensure the fairness of intercompanytransactions in American case law. In the United States, case law has aregulation of conflicts of interest transaction in order to ensure the fairnessof intercompany transactions. If there is approval by minority shareholdersand outside directors in case of conflict of interest transactions, businessjudgment rule is applied. In this case, plaintiffs claim of unfair transactionmust prove this. Doctrine of one is the corporate opportunity doctrine to regulate theinternal transaction in corporate group. The corporate opportunity doctrine isa theory that developed in order to solve the interests collision betweenentities and directors. Article 5.12 ALI criteria be specified with respect totake the corporate opportunity by the controlling shareholder. In this case, the corporate opportunity by the controlling shareholder is more narrowthan the corporate opportunity by director. In other words, only thebusiness area of subsidiaries that are not included in the business area ofthe parent company becomes the company opportunity. Such corporateopportunity attributable to subsidiary in principle. According to the fairnessstandard, controlling shareholder is able to get that opportunity if the boardof directors gave up the opportunity is provided to the subsidiary. The new regulations to govern the internal transactions within thecorporate group are introduced in the Commercial Act amended in 2011. One is self-dealing of director. It is expended to such associated person andprincipal shareholders. In addition, it has been enhanced more thantwo-thirds of the Board of Directors also approved requirements of theBoard of Directors. It defines the prior approval of the Board of Directorsstrictly too. The Commercial Act adopts the duty to disclose informationprior to the Board of Directors. And the Commercial Act adopts a fairnesstest providing that a transaction is valid when both the director obtainsBoard of Directors` approval and the transaction is fair to the corporation. There are more strict than the regulation of the United States case law onsuch self-dealing restrictions. It is necessary to put the approval provisionsof the self-dealing by a special committee for rapid corporate managementat least. As legislative theory, it is necessary to selectively-requirementsfairness of the contents of the self-dealing. Self-dealing must be to ensurethat the enabled if director proves the fairness of the transaction even ifthere is no approval of the Board of Directors. Reporting requirements for the General Meeting of Shareholders and Boardof Directors approval is granted when the deal with the largest shareholderof large listed companies and the prohibition of credit in the specialprovisions of the listed companies. Such a special provisions when restrictivethe provisions of the self-dealing has placed in the legislative purpose to try to prevent the tyranny of the controlling shareholder. Value of specialprovision will never change because the special provision are stronger thanthe self-dealing in the Commercial Act in 2011. However, it appears as itwill necessary to organize a special provision part to the more sophisticated. The Commercial Act in 2011 stipulates the prohibition of the usurpation ofcorporate opportunity to try regulate so-called the volumes of transaction. But the usurpation of corporate opportunity of the Commercial Act isdifferent than the doctrine of company opportunity of American case law. Our system has not regulated direct the parent company and controllingshareholder.　So controlling shareholder is not responsible for any of theusurpation of corporate opportunity as long as the controlling shareholder isnot accepted by the executive director or the instructor. We need to studyfor legislative supplement to block the usurpation of corporate opportunityby controlling shareholder.