이사의 충실의무 확대에 따른 자기주식 규율의 재검토 -책임성립의 기준을 중심으로-

The 2025 amendment to the Korean Commercial Act has brought about a significant shift in the legal framework governing directors’ decision-making by explicitly including shareholders within the scope of interests protected by the duty of loyalty. This change is of particular importance in matters such as the acquisition, holding, and disposition of treasury shares, which directly affect both shareholders’ economic interests and the structure of corporate control. While the management of treasury shares had traditionally been accorded broad deference as a matter of directors’ business judgment, it is necessary to reconsider whether the same evaluative framework can be maintained under the amended Act. This Article avoids reducing the mere holding of treasury shares to an automatic violation of the duty of loyalty. Instead, it examines the circumstances under which directors’ decisions regarding the holding and disposition of treasury shares may give rise to liability under the amended duty of loyalty. In particular, by analyzing various patterns of treasury share management—such as long-term retention, dispositions favoring specific shareholders, and the absence of alternative shareholder return mechanisms—this Article argues that compliance with the duty of loyalty should be assessed ex post based not on outcomes alone, but on the decision-making process and the extent to which the directors’ judgments can be substantively justified. In addition, this Article reviews recent legislative proposals concerning the mandatory cancellation of treasury shares and considers whether a regulatory scheme that ex ante compels cancellation as a specific outcome is in tension with the process-oriented and case-specific structure of the duty of loyalty review contemplated by the amended Commercial Act. On this basis, the Article contends that the proper direction of treasury share regulation lies not in the generalization of a mandatory cancellation obligation, but rather in the refinement of standards for assessing directors’ responsibility—specifically, whether a decision not to cancel treasury shares is consistent with the purpose of protecting shareholder interests embodied in the expanded duty of loyalty. The interpretive framework proposed in this Article is expected to serve as a useful reference for determining the scope of directors’ liability in future disputes involving treasury shares.