이사의 주주 충실의무 확대와테뉴어 보팅의 도입에 관한 법적 연구

The expansion of directors’ duty of loyalty to shareholders, which was proposed by the amendment to the Commercial Act in 2024, continues to be controversial. The existing Commercial Act stipulates that directors’ duty of loyalty applies only to the ‘company’. This raises the issue of difficulty in effectively controlling the tyranny of controlling shareholders and the infringement of minority shareholder rights that occur in actual corporate governance structures. On the other hand, concerns have been raised about the scope of directors’ breach of trust, excessive litigation, and the possibility of attacks by overseas speculative capital. In the midst of this, the amendment expands the subject of the duty of loyalty to the ‘company and shareholders’, clarifying the criteria for directors’ judgment and enhancing the possibility of legal control over the arbitrary decision-making of management. Meanwhile, tenure voting aims to strengthen the monitoring authority of long-term investors and limit the market influence of short-term speculative capital by weighting voting rights in proportion to the long-term holding period of stocks. Looking at overseas cases, in France, tenure voting is actively utilized from a protectionist perspective, and in the US, through voluntary adoption, the system is having a meaningful impact on establishing long-term strategies and inducing responsible management for companies. The expansion of the duty of loyalty is connected from a globalization perspective, and tenure voting is connected from a protectionist perspective, so they have different starting points. However, when looking at the functional content of the two, there is mutual complementarity in terms of legislative responses to solve the common real-world issues of the governance structure of the Korean capital market and the pressure of short-term investment. Accordingly, if tenure voting is introduced along with the expansion of the duty of loyalty, legislative effects can be expected in terms of strengthening the normative responsibility of directors and securing the actual function of the monitoring entity. In particular, considering the concentration of power centered on controlling shareholders due to the special nature of the governance structure of the Korean capital market, the passive participation of institutional investors in governance, and the structural disadvantage of minority shareholders, legislative supplementation and maximization of policy effects can be derived through organic combination of the two. In addition, it can be expected to play a positive role in restoring trust in the capital market, establishing sustainable governance, and creating a responsible investment ecosystem.