주주 충실의무론의 수용 - 이사 충실의무와 관련하여 -

The shareholder's duty of loyalty has been a debate with the concept of director's duty of loyalty. The latter has a legal basis in the Commercial Act, but owing to the ambiguousness of the concept, court has not set up the concrete concept of it. When we set up the concept of the director's duty of loyalty, it would effect the shareholder's duty of loyalty. While the duty of care is related to the caution about conducting corporate business, the duty of loyalty does not relate to whether or not there be a breach of duty of care. It has been insisted to introduce the shareholder's duty of loyalty to regulate the shareholder's behavior through which involve management or resolute in the shareholders' meeting to cause to the loss of corporation or shareholders. The Commercial Act has the articles to regulate the controlling shareholder like as the liability of a person instructing to conduct corporate business(§ 401-2), self-dealing(§ 398), credit offering(§ 542-9) and limit of vote of specially interested shareholder(§ 368 ③). However these articles do not regulate directly the shareholder. The duty of loyalty should be imposed to the controlling shareholders whose exercise of right would influence the interest of corporation or shareholder. The application case of shareholder's duty of loyalty are self-dealing between corporation and shareholder, the usurpation of corporate opportunity and the oppression of minority shareholders, etc. When shareholder's duty of loyalty were violated, the relief of filing for an injunction and the suit for affirming nullity of resolution or damages could be considered.