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The Doctrine of Usurpation of Corporate Opportunity

A rule governing the decision-making discretion of a corporate fiduciary should protect the integrity of the fiduciary relationship by both maximizing the utility of the relationship and minimizing the opportunities for abuse of power. Nevertheless, a corporate fiduciary is not in total thrall to the corporation and furthermore governing rules should not undermine the spirit of free enterprise and the exercise of discretionary authority for which the fiduciary was hired. In this era of rapid technological innovation, corporations face many exciting corporate opportunities. These corporations, however, may not be prepared to exploit new corporate opportunities that they encounter. A corporation’s inability to immediately take advantage of profitable opportunities understandably tempts fiduciaries within these entities who learn of the opportunities through their employment, to consider personally taking the opportunities. In addition to the corporate opportunity doctrine, corporate law deals with directors’ competition and self dealing, but corporate opportunity doctrine different from other two doctrines for various reasons. Traditionally, the US courts have dealt with director’s usurpation of corporate opportunity as a breach of duty of loyalty. As the US goes, the Ministry of Justice tries to introduce the theory into Commercial Code in Korea, too. It seems that there is no dissenting opinion in protecting business entities from the usurpation of corporate opportunity. Merely, some commentators who have raised the view want to solve the problem through the enlarged analytical research of existing provisions. In this study, I give my opinion that it is desirable to make new provisions about the corporate opportunity doctrine or it may be more pertinent to solve the problem through the entry of the corporate opportunity in the category of competition with the corporation.