회사기회유용에 관한 영국과 독일의 법리 연구

Article 397-2 of the Korean Commercial Code was drafted under heavy influence of the corporate opportunity doctrine of US law. It produced among Korean lawyers and legal scholars considerable interest in US law regarding corporate opportunity, but it remained out of notice that other jurisdictions also have faced similar issues and developed laws functionally equivalent to the corporate opportunity doctrine of US. This paper summarizes and analyzes laws of UK and Germany regarding corporate opportunity and compares them with Korean law as well as US law from a comparative perspective. As a result of the review of UK and German law, we found that both jurisdictions more and more easily recognize existence of corporate opportunity. Such a tendency is in line with the “line of business” test of the US law and the broad definition of corporate opportunity under Article 397-2 of the Korean Commercial Code. We also found that both jurisdictions were converging to the model that the board of directors is entitled to authorize or approve the usurpation of the corporate opportunity. UK law made statutory grounds for such a board approval in 2006 Companies Act, and German law leads to a similar conclusion by analogously applying the provisions in its corporate law on the non-competition obligation of directors. Review of UK and German law reveals more similarities than differences between themselves. Also, such a review reveals more similarities and convergence than differences and divergence vis-a-vis other jurisdictions including US and Korea in terms of the elements of corporate opportunity as well as procedures for legitimate utilization of the opportunity.