株式會社 現事의 自己去來 制限 = A Study on the trensactions between a Director and His Corporation

다국어 초록 (Multilingual Abstract)

Article 398 of the Commercial Code of Korea provides that a director may effect a transaction with the company for his account or for the account of a third person only if he has obtained the approval of the board of directors, and that, in such case, the provisions of Article 124 of the Civil Code shall not apply.
The purpose of this Article is to protect a corporation by regulating a transaction between a corporation and a director through the board of directors, the decision-making organ of the corporation. Since there is a danger that the director who knows the actual state of management of the corporation may infringe upon the interests of the corporation in collusion with others in order to pursue his own profits or those of a third person.
However, in case the corporation may obtain necessary goods and services on profitable terms through such a transaction, the corporation desires the transaction. In this respect, there may be made such a transaction, so that it seems unproper to prohibit wholly such a profitable transaction.
In fact, the purpose of the regulation by law is to serve the fairness of transactions between a corporation and a director, that is to say, self-dealing transactions. Although the regulations of self-dealing transactions protect the interests of the corporation, their effect on the safety of transactions of the third parties cannot be overlooked. In order to meet such needs, theories and procedents with regard to the construction of Article 398 of the Code have repeatedly changed and extremely conflicted.
Why shall the Commercial Code permit the self-dealing transactions in an exceptional case, while principally prohibit them? W7at does the self-dealing transaction mean, and what is its criterion? What does the approval of the board of directors mean legally?
Shall the self-dealing transaction without on approval of the board of directors be effective, voidable or null? There is a lot of problems, but there has never been any legislative solution to them yet.
For academic approaches to the regulations of self-dealing transactions, this paper consists of seven chapters and has the contents as follows;
I.Introduction
II.The case of foreign Laws
III.The purpose of the Article
IV.The scope of self-dealing transactions
V.The approval of the board of directors
VI.The effect of the self-dealing transactions
VII.Conclusion
The regulations by the Commercial Code imply quite a few issues, mainly because it is unreasonable to expect an inspection by the members of the board of directors, which Korean corporations, most of which are closed corporations, have so far regarded as unnecessary. For this matter, there may be presented some measures to think over. In the first place, the power to approve shall be turned over to an auditor of the corporation.
Secondly, the procedures of the decision-making of the smallscale corporation and its organs shall be simplified, and the transformation of the board of directors into an optional organ.
Therefore, we are conclude that a substantial standard for determining the "fairness of self-dealing transactions" must be researched as the primary way to regulate the transactions between a corporation and a director.

목차 (Table of Contents)

• Ⅰ.머리말
• Ⅱ.去來制限의 立法例
• Ⅲ.去來制限의 根據
• Ⅳ.去來制限의 範圍
• Ⅴ.理事會의 承認
• Ⅵ.去來違反의 效果
• Ⅶ.맺음말