이사와 회사간 자기거래에 있어 적법한 이사회승인의 효과 - Marciano v. Nakash 사건의 평석을 겸하여 -

Abstract

In the year 2011, the Korean Commercial Code Book experienced a deepchange regarding a self-dealing regulation in section 398. It was so deeplythat almost all corporate lawyer in Korea feels until now some 'uncertainty'in its interpretation. The section went onto a stronger regulation. Thevalidity of board approval requires now not only a procedural fairness, butalso a intrinsic or price fairness. The both requirements should be metsimultaneously. Furthermore the section 398 demands literally only anin-advance approval. An ex-post facto ratification can no more render atransaction valid, although some scholars try to interpret it wider than itsliteral meaning. In this article, the author tries to analyse the relationship between theprocedural and the substantive fairness requirement. The author points outin especially, that the intrinsic fairness is presumable through the applicationof business judgment rule, when the fact meets the procedural requirement,because there is significant social utility in protecting conflict transactionsfrom judicial second-guessing.