주주충실 상법개정의 의의와 공정거래법 부당지원규제에 미치는 영향 내지 시사점

초록

This paper analyzes the impact and implications of the amendment to the Commercial Act (expanding the director's duty of loyalty to include shareholders, hereinafter the "Shareholder Loyalty Amendment") on the Fair Trade Act's regulation of unfair support, focusing on three aspects: regulatory scope, standards, and normative grounds. First, regarding regulatory scope, the Shareholder Loyalty Amendment provides a legal basis for the duty of loyalty in capital transactions, a domain that unfair support regulation (and the related regulation of private benefit extraction) previously failed to cover. Second, concerning regulatory standards, the Amendment may prompt a shift in the fairness standard—specifically, the concept of "substantially favorable terms"—which is central to unfair support regulation. Third, in terms of normative grounds, the regulation of unfair support historically faced the burden of "normative dissonance" by intervening in matters that were not illegal under corporate law, despite the merit of complementing corporate law's shortcomings. While the Shareholder Loyalty Amendment largely lays the groundwork to mitigate this dissonance

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