현행 상법상 회사기회유용금지 규정에 관한 문제점과 개선방안에 관한 연구

Legislation prohibiting the corporate opportunities was called for, and the criticism of academia and civic organizations on the personal use of corporate opportunities by the Director and controlling shareholders, exploiting the information and their ascendency gained due to their status has been on the rise in Korea as of late. The government and National Assembly recognize the seriousness of the corporate opportunities, and have come to amend the Commercial Act. Other nations such as the United States and Germany who had been discussing the dispute on the prohibition of corporate opportunities for a long time are still resolving the problem by application of the faithful obligations of the Board of Directors as applied by the court. The legislation on corporate opportunities was not established as a legalized system from the outset; the theories regarding corporate opportunities have been established by gathering various judicial precedents, which made the selection of a concrete and generalized standard that is difficult for the application of unified legal principles. Unlike the United States and Germany, Korea has legalized the prohibition on corporate opportunities by the Board of Directors. However, a disorder in legal application has been caused due to the concept of current and future corporate opportunities being unclear and abstract; it has been noted that “the normal activities of the company could be embraced within the concept of corporate opportunities, and may discourage corporate activities.” Also, legal safety can be violated as an arbitrary legal interpretation by the court. To suggest a summary of analytical and legislative reformation measures to solve the problems with the current corporate opportunity regulatory system: first, it is necessary to revise the legislation so that the regulation on the usurpation of corporate opportunity can be applied on condition that directors of enterprises practice their businesses within their business scope; secondly, there are regulations of the Commercial Act that are acknowledged and related to the laws of the United States and Germany; it is advisable to acknowledge the legal and financial abilities as grounds for defense; thirdly, the current commercial laws limit the subject of application to the Director and the executive officers of the company; however, as the corporate opportunities have a possibility to be taken advantage of by the controlling shareholders, thus the subject of application needs to be expanded as in the case for transacting out of one's self-interest from Article 398 of the Commercial Act; fourthly, the faithful obligations of the Director continues even after his or her resignation, thus it must be interpreted that the prohibition on corporate opportunities are also applied to former Directors of the company; lastly, in order for practical remedies to be executed in circumstances of the violation of prohibition on corporate opportunities, the intervention rights need to be acknowledged as the effect of the violation, as in the violation of prohibition on competitive transactions.