법인격 부인론 비판 (Criticism on Veil Piercing)

서지정보

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· 저자명 : 박규찬

초록

In this thesis, I argue that veil piercing should be abolished because there are uncertainty costs such as ex ante over- or under-precaution costs, and ex post litigation costs, but few benefits. Further, piercing the corporate veil is so rare in tort cases that veil piercing does not force a controlling shareholder to internalize the tort risk of the corporation. Moreover, veil piercing has theoretical flaws in itself. So, veil piercing should never be permitted for either contract creditors or tort creditors.
First of all, in this thesis, I recognize that the application of veil piercing for a contract creditor provides little benefit because a contract creditor could have reflected the credit risk on a contract price or could have bargained for some other guarantee or security in advance. Hence, there is no need for helping a contract creditor with veil piercing ex post. Rather it imposes costs on the society ex post. Those costs include litigation costs, monitoring costs, the inefficiency of the securities market, and unfairness in collection. Second, I also recognize that the vagueness of the requirements of veil piercing imposes ex ante costs of uncertainty. Many Korean legal commentators and courts argue that the statutory bases of veil piercing are the clauses of good faith and prohibition of the abuse of rights under the Korean Civil Code. However, the requirements they suggest are different from commentator to commentator and from court to court. So those requirements are unpredictable. Consequently, the predictability and stability of law are impaired by the vagueness. Further, when we consider that the principles of good faith and prohibition of the abuse of rights are the statutory bases for piercing the corporate veil, any case that involves piercing the corporate veil will be treated as one of many civil cases under the Korean Civil Code. So, those civil principles might be applied to the veil piercing case without considering any of the characteristics of corporate law, i.e., the misapplication of civil principles to a corporate case. In addition, uncertain legal principles and case laws impose costs of excessive or little precaution as well as litigation costs. Third, I also criticize the considering factors for veil piercing such as capital inadequacy and non-observance of the formality of the corporation in terms of causation.
Due to the limited space given to me for this article, I only analyzed and criticized the veil-piercing theory as a start for suggesting a new liability rules for controlling shareholders. Here, I introduce only the conclusion of my new proposal of the rules as follows: (1) a shareholder who directly or indirectly has no less than 30 percent of the voting shares of a corporation is automatically liable for the tort debts of the corporation regardless of the shareholder is an individual or a corporation, but not for the contract debts of the corporation; (2) if the shareholder is liable, then the tort creditors of the corporation can recover damages not only from the shareholder (individual or corporate) but also from other entities in a corporate group controlled by the controlling shareholder; and (3) a tort creditor of the controlled corporation has equal priority with an unsecured creditor of other members of the corporate group. With this bright-line rule, we can do, not only eliminate uncertainty costs but also substantially reduce litigation costs. I will argue and reason the rules in an another article in-depth.

영어초록

In this thesis, I argue that veil piercing should be abolished because there are uncertainty costs such as ex ante over- or under-precaution costs, and ex post litigation costs, but few benefits. Further, piercing the corporate veil is so rare in tort cases that veil piercing does not force a controlling shareholder to internalize the tort risk of the corporation. Moreover, veil piercing has theoretical flaws in itself. So, veil piercing should never be permitted for either contract creditors or tort creditors.
First of all, in this thesis, I recognize that the application of veil piercing for a contract creditor provides little benefit because a contract creditor could have reflected the credit risk on a contract price or could have bargained for some other guarantee or security in advance. Hence, there is no need for helping a contract creditor with veil piercing ex post. Rather it imposes costs on the society ex post. Those costs include litigation costs, monitoring costs, the inefficiency of the securities market, and unfairness in collection. Second, I also recognize that the vagueness of the requirements of veil piercing imposes ex ante costs of uncertainty. Many Korean legal commentators and courts argue that the statutory bases of veil piercing are the clauses of good faith and prohibition of the abuse of rights under the Korean Civil Code. However, the requirements they suggest are different from commentator to commentator and from court to court. So those requirements are unpredictable. Consequently, the predictability and stability of law are impaired by the vagueness. Further, when we consider that the principles of good faith and prohibition of the abuse of rights are the statutory bases for piercing the corporate veil, any case that involves piercing the corporate veil will be treated as one of many civil cases under the Korean Civil Code. So, those civil principles might be applied to the veil piercing case without considering any of the characteristics of corporate law, i.e., the misapplication of civil principles to a corporate case. In addition, uncertain legal principles and case laws impose costs of excessive or little precaution as well as litigation costs. Third, I also criticize the considering factors for veil piercing such as capital inadequacy and non-observance of the formality of the corporation in terms of causation.
Due to the limited space given to me for this article, I only analyzed and criticized the veil-piercing theory as a start for suggesting a new liability rules for controlling shareholders. Here, I introduce only the conclusion of my new proposal of the rules as follows: (1) a shareholder who directly or indirectly has no less than 30 percent of the voting shares of a corporation is automatically liable for the tort debts of the corporation regardless of the shareholder is an individual or a corporation, but not for the contract debts of the corporation; (2) if the shareholder is liable, then the tort creditors of the corporation can recover damages not only from the shareholder (individual or corporate) but also from other entities in a corporate group controlled by the controlling shareholder; and (3) a tort creditor of the controlled corporation has equal priority with an unsecured creditor of other members of the corporate group. With this bright-line rule, we can do, not only eliminate uncertainty costs but also substantially reduce litigation costs. I will argue and reason the rules in an another article in-depth.

참고자료

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