이사의 주주 이익 보호가 문제되는 개별 상황 분석 및 합리적 규제 방안 검토

Following the 21st National Assembly, the 22nd National Assembly is also actively discussing the amendment of the general provisions of the Commercial Act on the duty of loyalty of directors to specify the duty to protect shareholders' interests in order to prevent the infringement of minority shareholders' interests in corporate operational, financial and restructuring transactions. There is no doubt regarding the necessity of the protection of the shareholder interests in the corporate legal system, but there is a problem from the perspective of the system of corporate law against the argument that the obligation to protect shareholder interests should be stipulated through the amendment of the general provisions on the duty of directors. We cannot ignore the necessity of directors' protection of company stakeholders including creditors, and the above amendment would incur discrepancies from the system and practice in corporate law of major developed countries, and there may be the risk of the infringement of legal stability due to the abstractness of the concept of interests of shareholders from the perspective of the criminal liability for violations of directors' duty, causing unpredictable changes and uncertainties throughout the company law system as well. In addition, in a situation where there is no conflict of interest between the controlling shareholder and the minority shareholder, the interests of the minority shareholder can be sufficiently protected by the director's duty for the interest of the company alone. In this paper, we specified and classified the problematic situation that led to the argument for the amendment to the duty of the directors in order to protect the interests of minority shareholders consideting the conflicts of interest between controlling shareholders or management and minority shareholders in corporate operational, financial and restructuring transactions., and reviewed alternatives that can be considered to alleviate the conflict of interest between controlling shareholders and minority shareholders therein. In some cases, a diverse improvement measures has already been introduced and implemented for each situation, and in other cases, specific improvement discussions have already reached a considerable level. Additional review may be required thereon, but in terms of methodology, specific improvement measures on such individual situations from conflict of interests, may be more efficient in protecting the shareholders' interests than the abstract introduction of general provisions, and reasonable in order to ensure predictability for the companies, investors and the entire market.