이사의 충실의무에 대한 연구 - 미국의 논의를 중심으로 -

There has been an ongoing debate on whether the amendment of the article on the director’s duty of loyalty is necessary to regulate capital transactions that harm general shareholders without affecting the company's capital, such as unfair mergers, issuance of convertible bonds, and listing of subsidiaries after split-offs. This has led to a developing conflict between the proponents and opponents of the reform, and a means to reconcile the opposing interests is demanded to resolve the issue. This article maintains that protection of general shareholders is possible through the legal interpretation of the duty of loyalty clause. Specifically, we show that under the equity maximization norm currently adopted by commercial law, postulating a hypothetical shareholder with a perpetual holding period can protect common shareholders. This theory, also known as the neoclassical view, is consistent with the current commercial legal system and has propriety and soundness. It is also expected to resolve the conflict between the proponents and the opponents of the law reform by protecting common shareholders without limiting entrepreneurship.