영국 회사법상 이사의 충실의무 위반에 대한 구제수단

This paper examines whether it is plausible to apply the disgorgement of profits remedy to a corporation's board of directors. In Anglo-American jurisprudence, a corporate director is categorically treated as a status-based fiduciary who owes a fiduciary duty to the corporation. If a director makes unauthorized profits in breach of his fiduciary duty to the corporation, the director should be required to disgorge the profits just as a disloyal trustee is required to disgorge profits. Under the Korean Commercial Code, remedies exist that are functionally similar to the disgorgement of profits, yet these remedies are fragmented. For instance, directors are prohibited from engaging in a transaction that competes with their corporation's interests without the consent of the board of directors. If a director violates his duty not to compete without the board's consent, the director may be held liable for monetary damages sustained by the corporation. Additionally, intervention rights are granted to a corporation under the Korean Commercial Code. The corporation may intervene and substitute itself for the director in the third-party transaction. Furthermore, a director may not usurp certain business opportunities available to the corporation without approval by the board of directors. If a director usurps the corporation's business opportunity in contravention of his fiduciary duty, then the director may be held liable for damages based upon a presumption that the ill-gotten gains made by the director are the damages suffered by the corporation. Both intervention rights and the presumption that illegal profits are the corporation's damages are modified forms of the remedy of disgorgement of profits. However, a breach of a general duty of loyalty under the Korean Commercial Code does not stipulate these gain-based remedies. The directors of a corporation are in charge of managing the company's business and assets. Thus, their role is similar to that of a trustee. Thus, this paper argues that disgorgement of profits should be adopted for breach of a duty of loyalty by a director under the Korean Commercial Code.