개정 상법상 이사의 의무와 행동 규범에 관한 검토 - 일본의 법 해석론과 지침 등도 참고하여 -

Article 382-3 of the amended Commercial Act clarifies directors’ duties owed to shareholders and has positive implications, such as raising awareness of shareholder-interest protection in corporate practice. At the same time, it has generated considerable issues beyond problems of interpretation itself, including its relationship with the directors’ duties owed to the corporation under Article 382(2) of the Commercial Act. Generally, the benefits enjoyed by all shareholders in their capacity as shareholders do not differ from one another. Moreover, the interests that shareholders enjoy as shareholders are not distinct from the interests of the corporation. This suggests that harming the interests of ordinary shareholders amounts to harming the common interests of shareholders, and may ultimately harm the interests of the corporation itself. Accordingly, protecting the interests of ordinary shareholders becomes a matter of significant importance from the perspective of the corporation’s interests rather than merely shareholder interests. However, certain shareholders possess interests beyond those they hold as shareholders. Typical examples include controlling shareholders and institutional investors, including activist funds. Excessive emphasis on shareholders may overlook situations in which such extracorporate interests exist, which could result in harm to the interests of other shareholders. It may also lead to outcomes detrimental to the interests of the corporation. Meanwhile, discussions concerning the interests of shareholders and other stakeholders centered on the corporation have long been conducted. Through such discussions, reflections on the principle of shareholder value maximization have emerged, and efforts have been made to develop effective approaches that realize the interests of shareholders, stakeholders, and ultimately society as a whole by promoting the corporation’s success and growth. Based on the foregoing, this article assumes that the relationship between directors’ duties owed to the corporation under Article 382(2) of the Commercial Act and directors’ duties owed to shareholders under Article 382-3 should be understood as the former being the principle and the latter the exception. This is because such a framework is considered desirable from the perspective of promoting the interests of the corporation and stakeholders as a whole, including the common interests of shareholders. Accordingly, directors may determine, and act on, what is best from the standpoint of enhancing long-term corporate value, even if it does not represent the maximum benefit that shareholders might reasonably expect to receive. Of course, it may be argued that such a formulation risks rendering the directors’ duties owed to shareholders ineffective. Such concerns, however, may be addressed by establishing and publicly disclosing specific standards of conduct for directors in situations where the duty to shareholders is particularly salient.