상법 제398조의 變形的 解釋의 타당성

Section 398 of the Korean Commercial Act states that transactions between a corporation and its directors, major shareholders or their specified affiliated persons (self-dealing) shall be approved by the board of directors. Since the Commercial Act was enacted in 1962, there has been debate about two aspects of this provision: the authority of the approval and the timing of the approval. 1) The authority of approval Section 398 clearly requires approval by the board of directors. Nevertheless, there has been a minority theory that argues that an act of self-dealing may be approved by a resolution of the shareholders’ meeting citing the supremacy of shareholders’ meeting over other corporate organizations, the board of directors in particular. The author refutes this theory, stating that the allocation of corporate powers between the shareholders’ meeting and the board of directors is based on the doctrine of the separation of ownership and management, which is an institutional policy to protect creditors’ interests. Therefore, the approval of the board of directors cannot be replaced by approval from the shareholders’ meeting through interpretation. 2) The timing of approval Before amendment of Commercial Act in 2011, Section 398 did not specify the timing of approval. From the literal meaning of "approval," however, it was the established interpretation that the "approval" described in Section 398 denotes an approval prior to the transaction in question. Contrary to this established theory, the Supreme Court released a ruling that the board's approval after the conclusion of the transaction was also valid, and some legal scholars supported this ruling. In accordance with the legislators' common opinion that such a modified interpretation was not desirable for the efficient regulation of self-dealing, Section 398 was amended to expressly require “prior approval.” And this amendment was generally understood as an expression of intention to remove any possibility of interpretation that would allow an approval after the fact. Even after this amendment, however, significant number of scholars maintained their position that the law allows the approval after the fact. The author rebuts this contention from the perspective of the general doctrine of interpretation, stating that legal terms and provisions are to be interpreted in accordance with the ordinary literal meaning for the stability of the legal life, provided that a literal interpretation does not violate justice. In the cases where interpretation beyond the literal meaning is inevitable, the purpose of the enactment, background of enactment and the harmonization with entire order of the law must be considered. The author concludes that Supreme Court’s ruling and its supporters failed to explain the necessity of interpretation beyond the literal meaning and have not consider the background of the enactment.