사업기회유용 금지의무 위반의 효과-이사회 승인을 중심으로-

Corporate opportunity doctrine has been introduced into the Korean Commercial Act (“KCC”). When a corporate opportunity was approved by the board of directors (“BOD”), the director, who used the corporate opportunity, will not be responsible for the damages of the company, if any. However, it is controversial with the liability of the director, if the BOD did not fully perform the duty of care in the approval of the corporate opportunity. In this regard, Section 2 of the Article 397-2 of the KCC is ambiguous, and requires special elaborations to explore an untrodden field without referring to the examples of other countries. Korean commercial Act does not recognize the fairness test in regard with the corporate opportunity, nor constructive trusts on the contrary to the American cases. On the other hand, the director's liability results from any violation of his/her obligations in accordance with section 2 of the Article 397-2 of the KCC. Then, if the director used the corporate opportunity under the approval of the BOD, there is no violation of obligation in the side of the director. Even if the BOD failed to perform their duty of care, the liability shall be on the BOD rather than the director, because the approval itself is still valid. Thus, in this case, the director shall be exempted from any liability from the damages of the company, only if he/her used the corporate opportunity under the approval of the BOD, even if the BOD made the approval without fully performing the duty of care.