이사의 충실의무와 주주이익 보호

As individual investors have become more prominent, social and political concerns around corporate governance and the ʻʻKorea Discountʼʼ phenomenon have gained traction. Against this backdrop, issues have arisen where minority shareholder interests are undermined through practices like mergers and spinoffs among affiliated companies, issuance of new shares, equity carve-outs, and disposal of treasury stocks. Consequently, there is a growing perception in Korea that directors have no duty to protect shareholders. In response, some advocate for amending Article 382-3 of the Korean Commercial Act to explicitly stipulate directorsʼ duty of loyalty to the corporation and its shareholders. This idea has gained both strong support and opposition in recent legislative discussions. Proponents argue that such a duty would advance investor protection and corporate governance, while opponents fear it would bring excessive litigation and thus weaken competitiveness of Korean companies. This paper explores the arguments for and against introducing a statutory duty of loyalty to shareholders. Recognizing the importance of clarifying (i) to whom the directors owe duty and (ii) to which extent the directors are obliged to consider shareholdersʼ interest, it performs a comparative studies on the United States, United Kingdom, Germany, France, and Japan. While some argue that shareholder protection can be achieved through judicial interpretation without amending Korea Commercial Act, the authors contend that the amendment is essential to embed shareholder interests as a normative standard in decision-making and to improve the perception of Korean capital markets. However, a duty of loyalty to both the company and its shareholders as suggested by some proposals may bring uncertainties regarding directorsʼ duty and responsibilities and lead to unnecessary disputes. The paper thus proposes amending Article 382-3 to state that directors must ʻʻprotect the legitimate interests of all shareholders and not unjustly infringe upon the rights of any specific shareholder.ʼʼ Additionally, to dispel any misinterpretation that directors should prioritize shareholder interests at the expense of other stakeholders, the authors suggest adding a provision allowing directors to consider factors related to the companyʼs sustainability, such as environmental and social issues, in fulfilling their duties.