회사기회의 유용 및 자기거래 규제에 따른 실무적 현안과 법적 과제

Abstract

Provisions against directors taking advantage of corporate opportunity and expansion of self-dealing' scope was inserted by amendment of the Korean Commercial Act in March 2011. As far as corporate opportunity issues are concerned, many scholars and activist groups have insisted that provisions against directors taking advantage of corporate opportunity should be inserted in order to prevent the conflict of interesting between corporate and board directors. On the other hand, the provision on corporate opportunity has been criticized by many businesspeople as vague, unpredictable, unprecedented and, at best, entailing excessive regulation, even if the concepts are adopted from U.S. case law, which may be used as a reference. Such criticism is not groundless as the provision itself provides no clue at all on how to define “corporate opportunity” and when or under what circumstances directors or controlling shareholders may nevertheless take advantage of it - both of which have been critical topics in U.S. cases. As far as self-dealing issues are concerned, many scholars and activist groups have insisted that the past provisions was not enough to control against directors and major shareholders taking interest of corporate. Finally, self-dealing is restricted more harder by this amendment of Korean Commercial Act. On the other hand, the provision on self dealing of director and major shareholder has been criticized by many business people as excessively wide. Such criticism is not groundless as the provision itself interrupt the transactions between affiliated companies. As a result, this means that the issue would be totally up to the interpretation of the courts, which would make it very difficult for corporate leaders to identify exactly what is and is not acceptable management behavior. Enhanced corporate rules are definitely necessary to achieve more transparent and fairer corporate practices, but the rules at the same time need be clear, feasible and prudent to the purpose. The provisions on corporate opportunity and self-dealing shows us how difficult legislative work is and why it should be. Conclusionally, as far as provisions against directors taking advantage of corporate opportunity and expansion of self-dealing' scope are concerned, it need to be revised again as soon as possible.