이사 충실의무의 실무상 쟁점과 공정성 강화 조치

The amendment to Article 382-3 of the Commercial Code has expanded the scope of a director's duty of loyalty. As the amendment aims to control various types of self-dealing by providing a standard for directors to follow, the provision itself is formulated in rather abstract and comprehensive terms. Against this backdrop, this paper intends to propose interpretive standards for the duty of loyalty and behavioral norms for directors, thereby contributing to the establishment of sound practices and commercial customs. The provision on the duty of loyalty applies not only to cases where shareholders suffer direct damages without loss to the company—such as in unfair mergers—but also to cases where a company incurs losses leading to indirect damages to shareholders, such as in ordinary transactions between affiliated companies. This duty applies regardless of whether there is a conflict of interest among shareholders and does not permit sacrificing the company's interests for the benefit of shareholders. Directors are not obligated to accommodate requests from individual shareholders; instead, they may determine, based on their business judgment, which course of action contributes most to the overall share value. The duty to treat individual shareholders fairly does not imply treating them with mechanical equality; rather, the standard is based on how the shareholders' wealth actually changes. The legal principles regarding the Business Judgment Rule established by court precedents also apply to the amended duty of loyalty. Directors must make decisions based on a rational belief that they are acting in the best interests of both the company and the shareholders. However, if a director has a direct or indirect interest or is under the influence of an interested controlling shareholder, questions may arise as to whether the director has the incentive to pursue those best interests. To enhance the fairness of decision-making, this paper suggests the approval mechanisms of "majority-of-the-minority (MoM)" and "special committees." These systems are acceptable within our legal framework as they simulate an arm’s length transaction environment even where conflicts of interest exist, thereby justifying the terms of the transaction as fair. Considering the incentives and expertise of shareholders, it is reasonable to apply MoM when the act is subject to a general meeting of shareholders and Special Committee approval when it is subject to a board resolution. Remedies for shareholders in the event of a breach of the duty of loyalty include seeking damages from directors toward the company and shareholders, as well as challenging the validity of or enjoining the violating act. Regarding director liability for damages, it is crucial to distinguish between indirect and direct damages to shareholders. According to the "difference theory" (Differenzhypothese), it is desirable to use as a benchmark the method that most closely restores the shareholder to the position they would have occupied had no breach occurred. Generally, the outflow of corporate assets through ordinary transactions or embezzlement should be treated as indirect damage under Article 399. In contrast, capital transactions, corporate reorganizations, or M&As between shareholders should be pursued as direct damage under Article 401. However, since the effect of Article 401 liability is limited to the plaintiff-shareholder, it is not necessary to exclude litigation under Article 399. Furthermore, considering the limited financial capability of individual directors, it is necessary to consider introducing a litigation procedure that allows for ex-post adjustment of consideration when merger ratios, share exchange ratios, or capital reduction ratios are deemed unfair. Unless a director's act constitutes an abuse of representative authority, a transaction with a third party is not rendered void solely due to a breach of the duty of loyalty, and shareholders cannot directly seek a declaratory judgment of nullity on such grounds. Since directors are not in a mandate relationship with shareholders, shareholders cannot request directors to perform or refrain from certain acts based on the duty of loyalty. Nevertheless, shareholders may utilize the right to request an injunction against illegal acts under Article 402, and in exceptional circumstances where shareholder rights are directly infringed, a claim for the removal of interference based on shareholder rights may be recognized. Since commercial customs serve as a source of law (fons juris) for commercial matters in the absence of explicit provisions in the Commercial Code, the establishment and widespread adoption of reasonable practices regarding the fulfillment of the duty of loyalty can function as an interpretive standard. In this regard, the relevant guidelines from the Ministry of Justice are a welcome catalyst for the formation of such practices.