이사의 선관의무, 충실의무, 공정의무의 작동과 조정 - 합병, 분할, 주식교환, 물적분할 상황을 중심으로 -

By limiting the subject of duties and liabilities in corporate relationships to directors, the Korean Stock Corporation Act has made the status of directorship the most important position in a stock corporation. As a result, effective enforcement for the Corporations Act may only be accomplished by pursuing the liabilities of the directors. When managing a stock corporation, the Korean directors assume not only mandate duties but loyalty duties and fairness duties, and these three duties operate respectively on their own independent principles. The most basic duty under the Korean law is the mandate duty to pursue profit-maximization in the best interest of their company. The duty of loyalty and duty of fairness operate as a supplementary and incidental duty. First and foremost, the mandate duty operates to make the directors pursue maximum corporate profit, and if there arises conflict among shareholders the fairness duty is triggered to operate supplementarily to make directors to treat them fairly among the conflicting shareholders. The duty of loyalty also functions as a supplement to prevent individual directors from misappropriating the maximum profits for their personal use. But, in the context of a corporate group including chaebol group, the mandate duty of directors to act in the best interest of their company may conflict with the same duty of directors in other affiliate. And thus in the context of transactions between group affiliates, the mandate duty of each affiliateʼs directors has to be adjusted from the duty of profit-maximization to the duty of fair-valution, and each director would fulfill his mandate duty of profit-maximization if he negotiates fair transaction terms. In addition, the directors may fulfill their fairness duties if they distribute the fair value, which is the maximum value in group context, among conflicting shareholders according to their share ratios.