이 글은 우리법에 도입된 충실의무의 현황과 충실의무법의 발전방향에 대해 살펴보는 것을 주된 목적으로 한다. 상법 제382조의3 (이사의 충실의무) 및 자본시장과 금융투자업에 관한 법률 제79조 (집합투자업자의 충실의무), 제96조 (투자자문업자 및 투자일임업자의 충실의무), 제102조 (신탁업자의 충실의무) 등은 명시적으로 충실의무를 규정하고 있는데, 이러한 이사 및 집합투자업자 등의 명시적인 충실의무조항과 관련하여 현재 충실의무법이 우리법에 어떠한 상태로 도입되어 있으며, 어떻게 발전될 수 있는가를 살펴본다. 회사법 및 자본시장법에서의 충실의무법은 특히 신탁법상의 충실의무법 발전과 연관지어 살펴볼 필요가 있는데, 신탁법개정안은 제33조부터 제36조까지 다양한 충실의무에 대해 구체적으로 규정하고 있고, 제43조에서 충실의무위반에 대한 다양한 구제수단을 규정하고 있다. 이러한 신탁법 전면개정안에 규정된 충실의무법은 회사법 및 자본시장법에 규정된 충실의무자에게 준용될 여지가 있을 것이다. 따라서, 신탁법, 회사법, 금융법 등에 대한 국회의 명시적 입법노력이 있고, 이에 더하여 학자들의 충실의무법에 대한 선도적 연구가 행해지고, 마지막으로 충실의무에 대한 법원의 적극적인 해석이 행해진다면, 우리나라에서도 영미에서와 같은 일반적 충실의무법이 정립될 수 있을 것으로 생각된다.

In common law countries, the principle of fiduciary law has been developed separately by the chancery court as opposed to the common law court and plays a pivotal role in regulating with utmost flexibility situations involving conflicts of interests or discretionary powers. On the other hand, in civil law countries, there is no equivalent general principle of fiduciary law. Instead, there are isolated specific provisions dealing with conflicts of interests such as prohibition of self-dealing and prohibition of competition with the principal, etc. Although these scattered provisions may play a similar role in regulating conflict of interests or discretionary powers, I argue that there exists a significant difference between the two regimes, and that powerful judges armed with flexible fiduciary law would do a better monitoring or guarding job by undertaking “gap-filling” mechanism in private law, thereby lowering overall agency costs. While the chancery court has inherent and unlimited discretion in recognizing the fiduciary status of a person in a conflicting position and in granting flexible fiduciary remedies, the civil law courts have to resort to relevant statutory provisions and are inevitably subject to the limitation resulting from the statutory interpretation of those provisions, and the available remedies are normally limited to damages only. Therefore, in order to deal with conflict of interest or discretionary powers efficiently and universally, it is arguable that the introduction of Anglo-American fiduciary law into Korean law should be accomplished systemically as a whole, rather than through piecemeal amendments of various legislations. Also the introduction should be executed in two stages: first, there should be legislative measures to introduce enabling provisions of fiduciary concept into as many legislations as possible first for trust law as a springboard and then for corporate and financial law; second, there should be guiding scholarly efforts as well as efforts by the judiciary to draw out and establish uniform fiduciary principles across different areas of laws facing possible conflict of interest situations (such as the no-conflict rule and no-profit rule, duty of loyalty, duty of disclosure etc). In particular, the Korean Courts should be empowered to be active and willing to interpret and enforce those statutory provisions broadly, so as to allow the provisions to operate in a similar manner as Anglo-American fiduciary law.

In common law countries, the principle of fiduciary law has been developed separately by the chancery court as opposed to the common law court and plays a pivotal role in regulating with utmost flexibility situations involving conflicts of interests or discretionary powers. On the other hand, in civil law countries, there is no equivalent general principle of fiduciary law. Instead, there are isolated specific provisions dealing with conflicts of interests such as prohibition of self-dealing and prohibition of competition with the principal, etc. Although these scattered provisions may play a similar role in regulating conflict of interests or discretionary powers, I argue that there exists a significant difference between the two regimes, and that powerful judges armed with flexible fiduciary law would do a better monitoring or guarding job by undertaking “gap-filling” mechanism in private law, thereby lowering overall agency costs. While the chancery court has inherent and unlimited discretion in recognizing the fiduciary status of a person in a conflicting position and in granting flexible fiduciary remedies, the civil law courts have to resort to relevant statutory provisions and are inevitably subject to the limitation resulting from the statutory interpretation of those provisions, and the available remedies are normally limited to damages only. Therefore, in order to deal with conflict of interest or discretionary powers efficiently and universally, it is arguable that the introduction of Anglo-American fiduciary law into Korean law should be accomplished systemically as a whole, rather than through piecemeal amendments of various legislations. Also the introduction should be executed in two stages: first, there should be legislative measures to introduce enabling provisions of fiduciary concept into as many legislations as possible first for trust law as a springboard and then for corporate and financial law; second, there should be guiding scholarly efforts as well as efforts by the judiciary to draw out and establish uniform fiduciary principles across different areas of laws facing possible conflict of interest situations (such as the no-conflict rule and no-profit rule, duty of loyalty, duty of disclosure etc). In particular, the Korean Courts should be empowered to be active and willing to interpret and enforce those statutory provisions broadly, so as to allow the provisions to operate in a similar manner as Anglo-American fiduciary law.

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fiduciary duties, duty of loyalty, fiduciary law, law of trust, equity, chancery, fiduciary, trustee, director, directors' fiduciary duties, trustees' fiduciary duties, account of profits, disgorgement of profits