미국 이사 신인의무 최근 판례 동향 및 우리나라 이사 충실의무 확장 논의에서의 함의

In this paper, the author analyzed the Commercial Act bills proposed in the 22nd National Assembly and linked to the discussion on expanding the director’s duty of loyalty. Then, the author briefly introduced how the United States established common law’s fiduciary duty. Based on this understanding, the author examined two United States cases that have recognized the director’s fiduciary duty to shareholders. After considering the implications of these cases on the bills, the author found that both cases are inappropriate for being used as the basis for the discussion in expanding the director’s duty of loyalty to shareholders. This finding is based on the facts that the common law fiduciary duty in the United States is limited to specific fact patterns that each case shows, and that, because how South Korea regulates the fiduciary duty is fundamentally different from the United States, the bills are hardly immunized from the criticism of unnecessary legislation or redundant regulations. Meanwhile, the MBCA’s director liability section, § 8.31(a)(2)(v), which provides the director is liable to shareholders when the director breaches any other duties to deal fairly with shareholders, totally weakens the basis of the argument saying the Commercial Law does not need to be changed. Nevertheless, because of the background of the introduction of the MBCA § 8.31(a)(2)(v) and its wording, the author could not conclude that this section is appropriate to be used as a basis for the discussion on the expansion of the duty of loyalty in South Korea. Finally, as the alternatives, the author proposed two separate plans. One is to expand the duty of care in the Korean Commercial Act by referring to the UK Companies Act 2006, and at the same time, introduce the business judgment principle in the Korean Commercial Act to protect the judgment of directors from the overuse of lawsuits. Another one is to amend the Capital Markets Act to protect minority shareholders from unfair capital transactions. Regarding the former plan, because the author made the same argument through another paper, only the issues of recognizing and measuring shareholders’ direct loss by the unfair capital transactions under the expanded duty of care are discussed. Concerning the latter plan, the author saw the policy, which provides the parent company’s shareholders with the preemptive right to purchase the subsidiary’s shares when it is listed after the split-off, as the one having the least side effects among the others included in the three discussed Capital Markets Act bills proposed in the 22nd National Assembly for broadening the director’s duty of loyalty.