공정거래법상 동일인(지배주주)의 이해상충과선관의무의 보호대상⋅자기거래⋅ 특별이해관계인 조항의 재해석 - 삼성SDS 회사분할 사례를 중심으로 -

The same person(hereinafter, the “Same Person”) under the Monopoly Regulation and Fair Trade Act, who is controlling the stock company(hereinafter, the “Company”) under the Korean Commercial Code(hereinafter, the “KCC”), has been the main reason of creating the conflict of interests within the Company, because the Same Person, by using its controlling power over both sides of a transaction, can easily transfer the wealth of the entire Company or ‘proportionate interests of entire shareholders’ to his own account (“tunnelling”). However, the Supreme Court and the prevailing theory in corporate law academy in Korea have taken the position that the interest of the shareholders are not protected by the corporate fiduciary duty unless specific remedy is provided in the KCC, by way of viewing it as a matter of individual law, not of corporate law. Put another way in detail, ① the proportionate interests of shareholders are not within the coverage of fiduciary duty of corporate directors under the so-called “Corporate Independent Doctrine - Account Standard,” ② the Article 398 of the KCC shall not cover the matter of conflict of interests between the Same Person and the Company(or the entire shareholders’ proportionate interests), and ③ the Paragraph (3) of the Article 368 is applicable only when individual law does matter, which ends it up almost a dead letter. Under these interpretations, it has been impossible to protect the interest of shareholders from the attempt of tunnelling by the Same Person and the interest of shareholders has been put into the blind spot of the legal protection. The Samsung C & T merger case proved itself as an example , implying that another Samsung C&T merger will continue to happen unless the interpretation of the KCC is changed. The ongoing Samsung SDS company division plan is on the brink of being such an ‘another’ example. The issue of whether the duty of corporate directors covers the proportionate interest of the entire shareholders is the paradigm issue that penetrates and controls the overall issues in the KCC. The Article 398 should be re-evaluated and re-interpreted so as to cover the conflict of interests between the Same Person and the Company. The Paragraph (3) of the Article 368 also should be re-interpreted as an important device of resolving the conflict of interest when the Same Person attempts to use the corporate resources for its own account and not for the entire company’s.