광주신세계사건과 모회사 이사의 충실의무 - 법인격부인론의 시각에서 본 대판 2013. 9. 12, 2011 다 57869 -

The decision of Korean Supreme Court on the Shinsegae Shareholder’s Derivative Litigation last year gave corporate lawyers in Korea a tremendous opportunity to review the director’s duty of loyalty in 100% parent-subsidiary relation. This case handled all the important sectors of the duty of loyalty, namely the duty not to compete with the corporation, the duty not to undertake any self-dealing without pre- appoval of the board and the duty not to usurp corporate opportunities. In especially this case offered a good playground to connect the director’s duty of loyalty with the veil-piercing doctrine. The parent, Shinsegae Inc. owned all the shares of the subsidairy, Kwangju Shinsegae Inc. One of the directors of the parent, Mr. Chung Yong-Jin, subscribed all the new shares, by which the wholly owned subsidiary undertook an emergent capital raising in the wake of asian financial crisis in the year of 1998. The plaintiff, the People’s Alliance for the Economic Reform (Kyung-Jae-Gae-Hyuk–Yeon-Dae) et al., claimed that the parent was damaged due to the transaction between the defendant director and the subsidiary, so that the defendants should compensate the damage. The Supreme Court confirmed the decision of Seoul High Court, in which the Court had rejected all the claims of the plaintiffs. The author tries in this comment the veil-piercing of the subsidiary. In relation to the duty not to compete with the corporation, he wants to pierce the formalized legal entity of the wholly-owned subsidiary, Kwangju Shinsegae Inc., and will negate the existence of the require- ment “other corporation with the same business sector” in section 397 Korean Commercial Code, juxtaposing the possibility of teleological interpretation of the same section. In relation to the duty not to undertake any self-dealing with the corpation without pre-approval of the board, he will also try to disregard the legal entity of subsidiary, in consequence that the defendant director should have requested the board of parent to approve the transaction before subscribing the new shares.