상법상 이사 등의 자기거래에 관한 연구

A Study on Self-Dealing in Commercial Act

Corporation director is a member of board of directors and bears duty of care by entrusting relationship of civil law and fiduciary duty regulated by commercial law. Aside from these fundamental duties, commercial law regulates various titles or vice titles to demand the director to perform its own duty properly. The director is in a position easily accessible to main information of the corporation related with his/her business operation. Therefore in spite of various duties demanded by commercial law, it is easy for the director to preferentially aim for his/her or third party benefit, sacrificing corporation benefit by using director position in case of corporation and director interest conflict. Especially when the director is having business with the corporation, these concerns have higher risk of actualization, increasing the risk of corporation or stockholder damage. So in order to prevent corporation or stockholder damage, commercial law has been regulating director’s self-dealing by Article 389, since 1963, at the time when commercial law entered into force. However, previous commercial law regulations had trouble of dealing effectively with changing environment, so the voice demanding improvement got louder, resulting in the start of revision work of self-dealing regulation in commercial law since 2005 to 2011. Commercial law has changed Article 398 at 2011 revision, and the main contents are self-dealing target extension, stating board approval as prior approval, and resolution requirement reinforcement, which is more than two thirds of the board. Also, for board approval, duty of disclosure has been imposed, and further more, procedural fairness and substantive fairness has been added. By strictly limiting director’s self-dealing and specifically fixing its requirement, commercial law has improved Article 398, therefore receiving positive evaluation. However, even though huge improvement has been made by 2011 revision, commercial law Article 398 still shows incomplete and uncertain side in its content, and is thought to have interpretative moot point in applying in practice. Therefore, the problem of current director’s self-dealing regulating system is expected to be supplemented and improved, through application of the law in practice by judicial authority leading into the arrangement of reasonable guidelines and active academic study.