이사의 주주에 대한 충실의무 입법의 타당성 및 입법방향

The amendment to Article 382-3 of the Commercial Act, which extends the object of a director’s duty of loyalty to include shareholders, is intended to strengthen shareholder protection. However, it is likely to cause substantial problems, such as ambiguity in setting the standards of conduct for directors, difficulties in corporate management due to increased litigation risks, and asymmetrical regulation in relation to the duty of care. In particular, if the company and shareholders are listed in parallel as the objects of the director’s duty of loyalty, it becomes unclear whose interests the director should prioritize when the interests of the company and the shareholders do not align, creating an imbalance whereby the object of the duty of care is the company, while the object of the duty of loyalty is both the company and the shareholders. In addition to these issues, the amended Article 382-3 also creates confusion by using the terms “shareholders,” “all shareholders,” and “entire shareholders” interchangeably, and it presents a logical inconsistency between the “interests of all shareholders,” understood as the collective interests of the shareholder body, and the principle of “equitable treatment,” which concerns balancing the interests of multiple individual shareholders. From this perspective, the position taken by the amended Article 382-3 is not persuasive. In legislating the duty of loyalty of directors, it is more appropriate to limit the object of the duty to the company, as in the pre-amendment Commercial Act, while interpreting the content of the Duty of loyalty to include the protection of shareholders’ interests. The shareholders’ interests protected as part of the content of the duty of loyalty should be understood with reference to a hypothetical shareholder who values long-term interests, considering the collective interests of all shareholders. While some argue for confirmatory legislation explicitly stating that the content of the duty of loyalty includes the duty to protect shareholders, such legislation raises doubts as to its effectiveness as a concrete judicial norm. Moreover, in circumstances where it is difficult to expect a clear distinction between the object and content of the duties of directors and shareholders, such confirmatory legislation is also unlikely to function effectively as a rule of conduct. Therefore, rather than adopting confirmatory legislation on the duty to protect shareholders, it would be more desirable to set clear norms through individual legislation for situations where shareholder protection is particularly needed, to refine case law theories, and to establish practical guidelines. Furthermore, the Commercial Act should introduce a duty of loyalty owed by controlling shareholders to minority shareholders, while imposing this duty at a passive and less stringent level compared to the director’s duty of loyalty to the company, in recognition of the fact that controlling shareholders are entitled to pursue their own interests. The discussion on whether to recognize a director’s duty of loyalty toward shareholders is significant in that it goes beyond the formal expansion of the duty’s object and points to the direction in which the Commercial Act should be designed to substantively secure shareholder protection. Given that the amended Article 382-3 suffers from issues such as the lack of distinction between the object and content of the duty of loyalty, inconsistent terminology, and asymmetrical regulation vis-à-vis the duty of care, it should be corrected through future amendments. Based on the premise that shareholder interests are to be protected as part of the content of the duty of loyalty, rather than as its object, shareholder interests should be safeguarded through a more precise and flexible approach, such as the enactment of individual statutes and guidelines for shareholder protection, and the introduction of a duty of loyalty of controlling shareholders toward minority shareholders.