한국 기업집단 지배구조 문제의 본질과 바람직한 상법 개정 -주주의 비례적 이익 관점에서-

The main problem in Korea’s corporate governance is the conflict of interests and transfer of wealth between the controlling shareholder and the ordinary shareholders. However, the current revision bills proposed by the National Assembly Senators are difficult to solve this problem. The desirable direction of revision is to ensure that the proportionate interests of the entire shareholder is included in the scope of directors’ fiduciary duty so as to be the first rule of the Korean Commercial Code(“KCC”), and to redefine the notion of ‘special interests’ under the KCC. In addition, the provisions regarding ‘controlling shareholder’ needs to be restructured so as to cope with the situation where an individual company and a corporate group are effectively controlled by the controlling person without holding a single share of the company at the apex of the corporate group, and where the controlling person is not subject to the KCC by making the affiliated companies being a counter party to the transaction. If the amendment to the KCC is made in accordance with the suggestion proposed in this article, the following effects are expected. First, because it focuses on the cause and essence of ‘conflict of interest’, it will be very effective to solve the problem. Second, by making needless much of the current revision bills, it will minimize the social costs and the confusion. Thirdly, while the current revision bills are a rule-based approach that does not set up a fundamental principle but creates and responds by making individual regulations, the proposal in this article will provide the principle-based approach that focuses on fundamental principles. This will be more in line with the mission of the KCC to prevent the unjust transfer of wealth regardless of the transaction type.