상법 제398조 자기거래제한 규정의 쟁점 및 개선방안

Article 398 of Commercial Act restricts self-dealing like transactions between specially related persons such as directors, major shareholders and their company in order to prevent the conflict of interest between them. Amended on a large scale in 2011, it has still had several issues in practical application. So the following interpretations and legislative improvements need to be introduced. First, with respect to the subject of application, it should be amended to include major shareholders of an unlisted company in addition to the shareholders under Article 542-8 (2) 6. It should also be done to include the spouse of lineal ascendants and descendants under the subparagraph 2 of article 398. Second, whether it is applicable to capital transactions, the case where directors, etc. subscribe to new shares issued by their company in a way of allotting the shares to other persons rather than its shareholders should be interpreted to fall in the scope of self-dealing. The case that directors, etc. subscribe to forfeited stock should also be treated as such. It is because these cases have a potential risk of conflict of interest. As the merger of companies inherently has fairness issues like determining the merger ratio, or squeezing minority shareholders out, the self dealing restriction should be considered as one of requirements on fairness as well as specific merger regulations. Third, with regard to the authority of the articles of incorporation, are the articles entitled to delegate the right to permit the self-dealing to the general shareholders meeting? In the situation where there are conflicts of interest between shareholders and management, unless a meeting of board of directors is held, the special resolution of the general shareholders meeting can be treated as the approval of director board if there is unanimous consent. Finally, with regard to the fairness requirement, either the approval of director board or the fairness requirement should, de lege ferenda, be an optional requirement. The article 398 which requires the fairness requirement to be mandatory can make the legal effect of transactions unstable depending on judicial decisions. If the current mandatory requirement could not be removed, we need to introduce a legal presumption to shift the burden of proof to the claimant seeking to hold the directors, etc. liable in order to make up for the fault.