주주에 대한 이사의 충실의무 부존재 하의 독일법상 주주 보호 수단 - 유럽 국가 및 영연방 국가와의 비교를 겸하여 -

This article first explains the internal responsibility of directors, the principle of external responsibility of the company, and the shareholder protection measures in the absence of a duty of loyalty towards shareholders under German corporate law (AktG). According to German corporate law, the company bears external responsibility and acts as the subject of shareholder protection. If shareholders suffer direct damage due to the negligence of the directors, the company can be held liable for breach of duty based on the legal relationship (Mitgliedschaftsverhältniss) that presupposes the membership rights between the company and the shareholders. Since the shareholdersʼ membership rights (Mitgliedschafstrecht) are absolute rights and protected under tort law, if a director infringes upon these rights, for example, through improper determination of merger ratios or unfair exclusion of subscription rights, both the director and the company can be held severally and jointly liable for tort. Secondly, a comparative legal study was conducted on the duty of loyalty of directors towards shareholders in European countries and Commonwealth nations, including the United Kingdom. Only four European countries recognize the duty of loyalty of directors, and even then, it is only recognized in a very limited manner based on case law, specifically in the presence of special circumstances (special factual relationships). Similarly, in the United Kingdom and Commonwealth countries, the duty of loyalty towards shareholders is recognized only in a very narrow scope through case law, typically predicated on special trust relationships established by the directors. Before deciding to introduce the duty of loyalty of directors towards shareholders, the following matters should be sufficiently considered: ① Whether there are fiduciary elements in the relationship between directors and shareholders that would justify recognizing the duty of loyalty. ② If the duty of loyalty is to be recognized only in a very limited scope, whether legislation is necessary. ③ Whether existing legal resources (such as the companyʼs breach of duty liability, tort liability, the directorʼs tort liability, and the directorʼs responsibility to third parties under Article 401 of the Commercial Code) can sufficiently address shareholder protection issues. ④ Whether to recognize the duty of loyalty of controlling shareholders to resolve the fundamental conflict of interest between controlling and minority shareholders. ⑤ If the duty of loyalty of directors towards shareholders is introduced, the determination of its scope of application. The permissible scope of private ordering in the articles of association related to the companyʼs governance structure ⑥ The legal nature of the directorʼs liability for violating the duty of loyalty and its relationship with existing liability regulations. ⑦ As a means to prevent excessive litigation by shareholders, the clear establishment of the concept of direct damage. ⑧ Establishment of a clear concept of direct damage as a means to prevent excessive litigation by shareholders.