이사 충실의무 대상에 대한 해외설문연구

Recently, the Korean National Assembly passed a bill to amend Section 382-3 of the Commercial Code, aiming to expand the scope of directors’ duty of loyalty by obligating directors to owe this duty not only to the company but also to its “shareholders.” As the amendment was formulated by referring to fiduciary duties in the common law model, imposing a generalized duty of loyalty to shareholders may risk blurring the doctrinal boundaries of Korean corporate law. In the Korean legal system, which has been heavily influenced by Japanese law and the European civil law model, directors’ duties have historically been understood within the framework of a contractual relationship under the Civil Act. This foundation contrasts with the Anglo-American legal tradition, where directors’ fiduciary duties originated from equitable principles. In this article, we conducted a comparative analysis of the concept, legal nature, and scope of the duty of loyalty across jurisdictions, followed by a survey of corporate law scholars from these countries. The purpose of this twofold approach was to assess whether the amendment truly reflects an emerging global standard regarding directors’ fiduciary obligations toward shareholders. The comparative analysis reveals that, in most jurisdictions, directors are primarily understood to owe their duty of loyalty to the company itself, and any protection afforded to shareholders is generally derivative of the company’s interests. Furthermore, the survey results show that while some jurisdictions acknowledge the convergence of corporate and shareholder interests in certain contexts, the general consensus remains that extending the duty of loyalty directly to shareholders could generate conceptual ambiguity and potential governance inefficiencies. These findings suggest that it may be premature to characterize the shareholder-inclusive duty of loyalty as an established international norm. Rather, the expansion of directors’ fiduciary obligations in Korea represents a distinct normative choice that departs from both civil law and common law traditions. Many respondents also expressed skepticism about whether this expansion would meaningfully enhance the protection of minority shareholders, warning that it might instead discourage legitimate business judgment and risk-taking by directors. We conclude by arguing that any further development of the duty of loyalty in Korea should carefully balance shareholder protection with the preservation of managerial discretion, drawing upon both comparative legal insights and Korea’s unique corporate governance context.