‘이사의 충실의무’에 관한 법원 해석에 대한 소고- 최근 상법 개정논의를 중심으로 -

Since last year, debates over amendments to the Commercial Act have been heated. According to the stated reasons for the proposed amendment, “While the current law stipulates that directors must faithfully perform their duties for the company in accordance with laws and the articles of incorporation, it does not provide for a duty of loyalty to shareholders. Therefore, the amendment seeks to explicitly state that directors, in performing their duties, must protect not only the interests of the company but also those of all shareholders, and must treat the interests of all shareholders fairly.” The background for this amendment discussion lies in the Supreme Court’s en banc decision in case 2007Do4949, which held, “A director is in a position to manage the affairs of the corporation, not the affairs of the shareholders, and therefore cannot be said to have breached their duties to the shareholders.” On this basis, the court denied the establishment of the crime of occupational breach of trust (embezzlement) against directors. Given this, if the duty of loyalty is expanded to include not only the company but also the ‘shareholders’, can directors be held criminally liable for breach of trust in cases like the above? Looking first at judicial interpretation prior to the amendment, a 2005 ruling recognized the crime of breach of trust when a representative director’s breach of duty caused damage to “shareholders or corporate creditors.” In a 2016 decision, the crime was also recognized on the grounds that the director had infringed upon “the interests of the company and its shareholders.” Furthermore, in 2023, when amendment discussions were in full swing, a lower court granted an injunction prohibiting the issuance of new shares and convertible bonds to third parties by the company, citing the infringement of “proportional interests of shareholders.” In other words, even under the previous provisions, the ‘interests of shareholders’ could be sufficiently protected. Therefore, simply adding vague terms such as ‘shareholders’ or ‘all shareholders’ to the existing provisions cannot achieve the objectives stated in the amendment proposal. No matter how the Commercial Act is amended, the courts could still acquit directors—as in the 2007Do4949 decision—if they find that the directors did their best to protect shareholders’ interests. Considering that Article 382-3 of the Commercial Act (Director’s Duty of Loyalty), which is the subject of the amendment, was newly established on December 28, 1998, and has not been amended even once since, it is necessary to examine the standards by which the courts have interpreted it in various ways. Even when the same facts are considered under the same law, various interpretations are possible. Therefore, this study intends to examine the statutory interpretation by our courts and to suggest that amendment alone is not the solution to the problem.