자기거래제한규정의 해석에 관한 연구 ‒ 도식화에 의한 단계별 고찰을 중심으로

On April 11th 2011, the revision of the Commercial Act 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 398 (Transactions between Directors, etc. and Company) was criticised. Article 398 restricts a director of corporation to make a transaction with corporation without approval of the board of directors. Restriction of transaction between director and corporation prohibits a corporate fiduciary from appropriating to himself any benefit that rightfully belongs to the corporation to which he owes a duty of loyalty. In the article 398, transaction between director and corporation was defined like below; Article 398 (Transactions between Directors, etc. and Company) When a person falling under any of the following subparagraphs intends to engage in a transaction with the company for his/her own account or for the account of a third party, he/she shall in advance disclose material facts of the relevant transaction at the board of directors and shall obtain approval therefrom. In such cases, the approval of the board of directors shall be granted with two thirds or more of the total number of the directors, and the relevant transaction shall be fair in terms of its particulars and procedures : 1. A director or a major shareholder under Article 542-8 (2) 6; 2. The spouse and lineal ascendents or descendents of a person falling under subparagraph 1; 3. Lineal ascendents or descendents of the spouse of a person falling under subparagraph 1; 4. A company in which a half or more of the total number of issued and outstanding shares with voting rights is held by a person falling under any of subparagraphs 1 through 3, solely or jointly with others, or its subsidiary company; 5. A company in which a half or more of the total number of issued and outstanding shares with voting rights is held by a person falling under any of subparagraphs 1 through 3, together with a company falling under subparagraph 4. In this research paper, I made article 398 into diagram that has some steps. Some disputed points from each steps were reviewed throughout research paper. Premise is about who is party of transaction applied by article 398. Step 1 is about whether certain transaction was conflict of interest. Step 2 is about whether full disclose was made to the board of director, if certain transaction was conflict of interest. Step 3 is about whether that transaction was a fair to corporation. Step 4 is about whether damage related with breach of article 398 was happened.