2002 Fiscal Year Final Research Report Summary
Sunthetic research about the varous problems in company law which takes place when the person who is not a director in law is engaged in the company management
| Project/Area Number |
11620048
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
Civil law
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| Research Institution | Osaka City University |
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Principal Investigator |
KITAMURA Masashi Osaka City University, Graduate School of Law, Professor, 大学院・法学研究科, 教授 (90204916)
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| Project Period (FY) |
1999 – 2002
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| Keywords | de facto director / corporate governance / corporate opportunity / competition between corporation and its directors / conflicts of interest / controlling shareholder |
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| Research Abstract |
Various problems were analyzed by this research which took place when the person who is not a director in law is involved in the company management. Specially, the problems of de facto manager's responsibility to company creditor and the competition done by de facto manager are discussed. As for the former, it is important that de facto manager does the order for command to the management, from the analysis of the precedent. As for the latter, it is important that de facto manager dealt in it by himself.
The legislation to treat de facto director according to the director in law was held in England and South Korea. The shadow director system which developed in case law was taken in the statute in England. In South Korea a rapid company law revision was done when the currency crisis occurred at the end of 20th century. Such legislation in England and South Korea is important for the de facto director's responsibility to company creditor.
De facto manager is usually a controlling shareholder. Fiduciary duty theory of the controlling shareholder developed in U.S. It is handled about the distribution of a corporate opportunity between the controlling shareholder and the company especially in detail by this research. It became clear that acquiring an corporate opportunity is prohibited in the controlling shareholder as well.
A director's function changed by the amendment of the Commercial Code in 2002. Another analysis will be necessary about the de facto executive officer and de facto director in the future.
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