상법 개정과 이해관계자 모델의 필요성 - 미국, 인도 등 비교법 분석을 중심으로 -

This article critically examines the recent legislative initiative in Korea to expand the scope of directors’ duty of loyalty under the Commercial Act, which aims to explicitly extend such duty beyond the “corporation” to include “all shareholders.” The proposed amendment to Article 382-3 introduces new language that mandates directors to protect the interests of all shareholders and treat them fairly. This legislative development has emerged in response to a series of cases involving corporate spin-offs, capital transactions, and related-party dealings in large business groups, which have raised concerns about the protection of minority shareholders. However, the article argues that while the amendment ostensibly seeks to protect minority shareholders, it may, in practice, reinforce a shareholder primacy regime that legitimizes the dominance of controlling shareholders. The ambiguous concept of “all shareholders” may be interpreted in a way that conflates the interests of controlling shareholders with those of the corporation, thereby distorting the original purpose of the duty of loyalty. This could lead to negative consequences such as reduced managerial autonomy, increased legal uncertainty, and a rise in derivative litigation and criminal exposure. Through a comparative legal analysis of the United States and India, this article highlights the divergent approaches to fiduciary duties. While the U.S. still adheres to shareholder primacy, it has developed mechanisms such as the business judgment rule and constituency statutes to balance the interests of stakeholders. India, by contrast, has adopted a stakeholder-oriented model through Section 166(2) of its Companies Act 2013, legally mandating directors to consider the interests of employees, communities, and the environment, alongside those of the shareholders. In contrast, the Korean amendment lacks corresponding structural safeguards and risks institutionalizing a stronger form of shareholder primacy without meaningful protection for minority shareholders or stakeholders. To address this gap, the article proposes an alternative revision to Article 382-3 that clearly defines directors’ duty of loyalty as encompassing the legitimate interests of both all shareholders and stakeholders, while also allowing consideration of sustainability factors such as environmental and social concerns. This approach aims to enhance corporate governance fairness and promote long-term corporate responsibility and accountability in Korea’s capital markets.