株主의 有限責任과 債權者保護에 관한 考察 - 株主의 細分化를 통 한 株主有限責任의 原則에 대한 例外法規 制定提案 - (Study on Limited Liability of Shareholder and Protection of the Creditors)

서지정보

· 발행기관 : 한국기업법학회
· 수록지 정보 : 기업법연구 / 24권 / 3호 / 133 ~ 160페이지
· 저자명 : 서성호, 김진환

초록

Limited liability of shareholder is one of basic features that the corporation company system (including the Limited Company). In case of the individual private company to which the limited liability system is not applicable (including the Unlimited Partnership and the General Partners of Joint Stock Company), there are risks to embrace, if the business fails, the burden to be subjected to discharge of obligation for not only the capital that the owner has invested as the investor but also the personal wealth. On the contrary, for the Corporation Company System, the participants with capital investment will risk only limited to own investment assets (paid-in-capital of own) without any other accountability beyond it. Such limited liability of shareholder of the corporation company system has merits to establish the share market where a number of investors will participate as it can guarantee the homogeneity of share, create the environment to achieve wide range investment by reducing the risk burden for those investors through paid in capital investment. Such merits play as the one of biggest causes for many profitable entities of today prefer to take the form of corporation company.
However, the fact that shareholders do not embrace the risks for business failure while they own the controlling authority over management ultimately acts as critical issue that creates potential for conflicts of interests in their relationship with the creditors. This is more prominent for the entities whose ownership and management is not separated in substantial. Therefore, in such case, the foundation is provided for the creditors to claim the doctrine of the disregard of a corporate entity on the Positive Law, and additionally, for the company with the conditions that the creditors are unable to claim such doctrine, the regulations set by the Commercial Act, Article 401-2 guaranteed by the current commercial laws of Korea, provides legal constitution for the responsibility of the conductor of affairs and the ground to pursue the question of directors" responsibility. Nonetheless, the various types of the company related creditors, it is not possible for all creditors to question on the obligation of shareholders by utilizing such legal doctrine and enacted laws in order to secure the credits officially and evenly. Even if any creditor may be able to pursue the question of directors" responsibility, the application of doctrine is extremely limited in narrow range within the power of the Positive Law. Also in case of applying the enacted law, the difficulty of providing proofs is being weighed so that such laws demerits for the creditors in actuality. Aforementioned does not necessarily mean that the principle of Limited liability of shareholder should be denied thoughtlessly to protect the creditors, but it can prevent any unusual operation of the General Meeting of Shareholders which is the highest decision making body of the company, resulting in securing the soundness of company management and furthermore, it is considered that it would be necessary to gradually reduce the room for disputing by making the limited liability of shareholder (Dominant shareholder) clear from different angle in order to protect the creditors.
Therefore, this study was intended to define the relationship of the company with the shareholder/the General Meeting of Shareholders as priority, then to newly deploy the theory of shareholder's liability corresponding to the contemporary era by specifying the shareholder types based on their roles and interest levels in the company management.

영어초록

Limited liability of shareholder is one of basic features that the corporation company system (including the Limited Company). In case of the individual private company to which the limited liability system is not applicable (including the Unlimited Partnership and the General Partners of Joint Stock Company), there are risks to embrace, if the business fails, the burden to be subjected to discharge of obligation for not only the capital that the owner has invested as the investor but also the personal wealth. On the contrary, for the Corporation Company System, the participants with capital investment will risk only limited to own investment assets (paid-in-capital of own) without any other accountability beyond it. Such limited liability of shareholder of the corporation company system has merits to establish the share market where a number of investors will participate as it can guarantee the homogeneity of share, create the environment to achieve wide range investment by reducing the risk burden for those investors through paid in capital investment. Such merits play as the one of biggest causes for many profitable entities of today prefer to take the form of corporation company.
However, the fact that shareholders do not embrace the risks for business failure while they own the controlling authority over management ultimately acts as critical issue that creates potential for conflicts of interests in their relationship with the creditors. This is more prominent for the entities whose ownership and management is not separated in substantial. Therefore, in such case, the foundation is provided for the creditors to claim the doctrine of the disregard of a corporate entity on the Positive Law, and additionally, for the company with the conditions that the creditors are unable to claim such doctrine, the regulations set by the Commercial Act, Article 401-2 guaranteed by the current commercial laws of Korea, provides legal constitution for the responsibility of the conductor of affairs and the ground to pursue the question of directors" responsibility. Nonetheless, the various types of the company related creditors, it is not possible for all creditors to question on the obligation of shareholders by utilizing such legal doctrine and enacted laws in order to secure the credits officially and evenly. Even if any creditor may be able to pursue the question of directors" responsibility, the application of doctrine is extremely limited in narrow range within the power of the Positive Law. Also in case of applying the enacted law, the difficulty of providing proofs is being weighed so that such laws demerits for the creditors in actuality. Aforementioned does not necessarily mean that the principle of Limited liability of shareholder should be denied thoughtlessly to protect the creditors, but it can prevent any unusual operation of the General Meeting of Shareholders which is the highest decision making body of the company, resulting in securing the soundness of company management and furthermore, it is considered that it would be necessary to gradually reduce the room for disputing by making the limited liability of shareholder (Dominant shareholder) clear from different angle in order to protect the creditors.
Therefore, this study was intended to define the relationship of the company with the shareholder/the General Meeting of Shareholders as priority, then to newly deploy the theory of shareholder's liability corresponding to the contemporary era by specifying the shareholder types based on their roles and interest levels in the company management.

참고자료

· 없음