상법상 이사의 주주에 대한 충실의무 및 지배주주의 충실의무 명문화에 관한 소고

There is controversy over the amendment to the Commercial Act, which includes shareholders in addition to the company, in the subject of the directors’ duty of loyalty. Recently, the government has mentioned the need to amend the commercial law as a way to overcome the undervaluation of the Korean stock market. In terms of the so-called ‘corporate value-up program’ to resolve the Korea discount, a revision of the commercial law is necessary. There is a sharp conflict between those in favor of the need to strengthen the rights of minority shareholders over the move to amend the commercial law and those in opposition that the uncertainty in corporate management may increase due to the overuse of lawsuits. Those in favor of the revision of the law argue that the directors of a company bear the duty of loyalty not only to the company but also to shareholders, as stipulated in the Organization for Economic Cooperation and Development’s (OECD) principle of corporate governance, and that the legal protection foundation for general shareholders should be strengthened through the revision of the law. In addition, it is said that the government should prevent damage to general shareholders and protect shareholder rights by preventing practices such as giving work to private companies by the controlling shareholder family. Regulations related to directors’ loyalty obligations are not unique to Korea. Since the contents are also stipulated in the corporate law regulations of major countries, it will be possible to determine whether such claims are valid or not by comparing them with foreign cases. Of course, in Korea, so-called hereditary royal family-centered companies, such as chaebols and quasi-chaebols, where the blood relatives of the founders inherit and take over management rights, occupy the center of the economic and social structure. Therefore, although it is different from other countries, it is meaningful to look at thecommon part of the director’s loyalty obligation in a comparative way. In other words, it was intended to think about the original purpose and essence of these regulations in relation to the expansion of the duty of loyalty of directors and controlling shareholders. In fact, the core of the amendment to the commercial law, which the opposition party and others are trying to promote, seems to focus on protecting the interests of minority shareholders of listed companies. However, for this purpose, methods such as adding phrases related to the protection of “shareholders’ proportional interests” or “total shareholders’ interests” to the regulations on the duty of loyalty of directors are not a desirable solution direction. As in Japan, I think that more realistic alternatives will be to supervise structural conflict of interest risks and prevent damage to minority shareholders, including when there are listed companies with real controlling shareholders through review and efforts to secure market soundness, such as strengthening exchange disclosure regulations in the Tokyo Stock Exchange market.