이사의 충실의무의 강행성 여부와 충실의무에 대한 사적 자치 : 신탁 충실의무법의 보충적 적용을 중심으로

There are two important debates in Korean fiduciary law. One is about ‘nature’ of loyalty duty. This debate has focused on whether the duty of loyalty is of ‘mandatory’ nature or not, and this issue has been explored mainly by trust lawyers. The other big debate is about the relationship between the loyalty duty and mandate duty of good managers. The most researched issue here is whether the loyalty duty can be drawn from a typical mandate duty, ie duty of care for good managers, and the issue has been investigated mainly by corporate lawyers. In this article, it is argued that both debates regarding ‘nature’ and ‘foundation’ of loyalty duty should be explored not only in trust law but in corporate law simultaneously in order to develop a unified Korean fiduciary law. Two things are emphasized here in the context of corporate loyalty duty. First, fiduciaries’ loyalty duty can be declared not only from their mandate duty of good managers but also from ‘conflict of interest’ nature of their status as the fiduciaries. Secondly, it is clear that Korean courts have discretion to declare duty of loyalty on fiduciaries or otherwise on the basis of either their fiduciary status or the specific nature of their relationship. Finally, this article explores the ways to manage conflict of interest and its resulting loyalty duty upon a fiduciary. It is argued that although the loyalty duty can be mandatorily imposed by the courts, it is also possible for parties to negotiate the loyalty duty in advance or retrospectively. The Korean Trust Act expressly provides three methods of managing trustees’ loyalty duty, and it is argued that those ways for trustees can also be available to corporate directors.