기회이용 허용 정관 규정의 입법 필요성과 델라웨어주의 입법 동향

In 2011, Korea introduced corporate opportunities doctrine in order to prevent the use of corporate opportunities by controlling shareholders. However criticism has been raised that the scope of the doctrine is so wide that it can interfere with the management of the company. In particular, if companies with interlocking directors are offered the same business opportunity, it is difficult for interlocking director to get the approval from both company. In the United States, the similar criticism has been raised that the doctrine is too so wide. Therefore, Delaware Corporation Law allow directors and officers to use specific corporate opportunities which is specified in certificate of incorporation in 2000. The effect of corporate opportunities waiver on the firm value is uncertain. If the corporate opportunity waiver increases the conflict of interest, the firm value may fall. By contrast if corporate opportunity waiver increases the number of transactions that help the company, firm value will rise. According to a recent empirical research, corporate opportunity waiver increases corporate value. In order to increase the efficiency of the company’s operations, it would be necessary for Korea to introduce corporate opportunity waiver, like Delaware. However, given that the derivative litigations are rare in Korea, it would be adequate to allow only the outside director to permit the use of corporate opportunity.