지배주주 이해상충 거래와 절차적 안전항 - Delaware MFW 법리의 전개와 SB21의 영향을 중심으로 -

초록

Korean commercial law contains an unusual mechanism that cate- gorically excludes interested parties from voting at both board and shareholders’ meetings. Despite the significant expansion of the self-dealing prohibition by the 2011 amendment, courts have continued to interpret the scope of the “interested party” concept restrictively. The structural tension between an expansive self-dealing regulation and a narrowly operated interested-party doctrine impedes the effective control of conflict-of-interest transactions. This article addresses this problem through comparative analysis of Delaware law, examining the MFW standard (2014), the In re Match Group decision (2024), and SB21 (2025), thereby systematizing the requirements, effects, and limits of procedural cleansing as a substitute for judicial substantive review. Three core propositions emerge. First, entire fairness review is structurally limited in that courts cannot independently assess a controlling shareholder’s “idiosyncratic vision”; the MFW standard attempts to overcome this through procedural cleansing. Second, the majority-of-minority vote (MoM) carries a stronger cleansing effect than special-committee approval; a committee earns equivalent effect only when the substantive independence of all its members is strictly verified—the rationale behind the Match Group unanimous- independence requirement. Third, SB21 has transformed the MFW doctrine along three axes—timing, scope, and requirement level—significantly eroding minority shareholder protections. Three implications follow for Korean law: the full-independence requirement must be applied substantively in designing a board committee-based safe harbor; the existing interested-party voting exclusion provisions should be interpreted expansively to implement a majority-of-minority vote mechanism; and no procedural device can displace the mandatory core of fiduciary duty. The concrete design of a safe harbor under Korean law is addressed in the companion article. Accordingly, this article’s contribution lies not in proposing concrete legislation for a Korean safe harbor, but in formalizing the comparative-law criteria on which such a design must rest.

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