회사기회유용금지규정의 해석에 관한 연구 - 도식화에 의한 단계별 고찰을 중심으로

On April 11th 2011, the revision of the Commercial Code was passed in the National Assembly of the Republic of Korea. Among the various articles which were codified in the revision of the Commercial Code, article 397-2(Prohibition against Appropriation of Company's Opportunities and Assets) was criticised. Article 397-2 prohibits a director of corporation from utilizing corporate opportunities without approval of the board of directors. Corporate Opportunity Doctrine prohibits a corporate fiduciary from appropriating to himself any opportunity that rightfully belongs to the corporation to which he owes a duty of loyalty. Corporate Opportunity Doctrine has been developed in case law of common law and was enacted as a article 397-2 through revision of Commercial Code. In the article 397-2, corporate opportunity was defined like below ;(1) No director shall use any business opportunity of the company which corresponds to any of the following subparagraph and may be of present or future benefit to the company, for his/her own account or for the account of a third party, without the approval of the board of directors. In such cases, the approval of the board of directors shall be granted with two thirds or more of the total number of directors :1. A business opportunity which has come known to the director in the course of performing his/her duty, or a business opportunity taking advantage of information of the company ;2. A business opportunity closely related to the business that is being currently conducted or is to be conducted by the company. (2) A director who has violated paragraph (1) and thereby incurred damage to the company and the director who approved the same shall be jointly and severally liable for compensation of the damage ; and the benefit earned by the director or a third party from the violation shall be presumed to be the damage suffered by the company. In this research paper, I made article 397-2 into diagram that has some steps. Some disputed points from each steps were reviewed throughout research paper. Step 1 is about whether certain opportunity was corporate opportunity. Step 2 is about whether full disclose was made to the board of director, if certain opportunity was a corporate opportunity. Step 3 is about whether director in board of director did a duty of loyalty when he made a vote to rejection of corporate opportunity. Step 4 is about whether damage which was related with breach of duty of disclose or duty of loyalty was happened.