회사법상의 충실의무, 총주주 이익보호 및 공평대우 의무의 해석

초록

With the revision of Article 382-3 of the Commercial Act, directors' duty of loyalty to shareholders was introduced. The revised article consists of abstract and uncertain phrases so a specific interpretation must be established to apply them to the case. The duty of loyalty to shareholders can affect the interpretation of the director's duty of loyalty to the company. The practice does not distinguish the director's duty of loyalty to the company from the duty of care, which requires the director to pay appropriate attention to prevent damage to the company, but the duty of loyalty requires unconditional prohibition on the premise of a conflict of interest, so the two must be distinguished and the unique scope of application of the duty of loyalty must be determined. Paragraph 1 of the revised article declares that the subject of the duty of loyalty extends not only to the company but also to shareholders. The duty to protect the interests of total shareholders and the duty to treat fair treatment in Paragraph 2 can be seen as stipulating how to fulfill the duty of loyalty. The obligation to protect the interests of the total shareholders applies when the company's profits remain unchanged and the total shareholders' profits decrease. The duty of fair treatment is a declaration of the principle of equal treatment of shareholders as a general obligation that applies to the overall performance of the directors. In addition to the formal judgment that relies only on the equity ratio in matters where shareholder equality is a problem, a practical analysis of how the company's actions have discriminatory consequences among shareholder groups should be conducted. The revised article only stipulates ‘protection of shareholder interests’, but the requirements of ‘self or third party calculation’ or ‘for self or third party’ should also be considered as a requirement to apply the above provisions. Since the revised law should be regarded as a mandatory regulation, the actions of directors in violation of their duty of loyalty, the resolutions of the board of directors, and the resolutions of the general shareholders' meeting are all invalid. For violations of the duty of loyalty, shareholders may claim compensation for damages from directors pursuant to Article 401. In cases where the interests of the total shareholders are violated or there is a conflict of interest between shareholders, the requirements of ‘intentional’ in Article 401 are satisfied. For corporate measures that violate the duty of loyalty to shareholders, it is possible to apply for a provisional injunction on the premise that the infringing shareholder rights are invalidated.

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