공익단체의 공익성 인정기준 등의 다양성과 통합필요성

이중기 ( Choong Kee Lee ) 홍익대학교 법학연구소 2014 홍익법학 Vol.15 No.2

Organizations in the third sector may be set up as different forms of entities. Some organizations take the form of a legal person or a trust, but others are formed as associations or foundations. But the dominant form of public organizations in Korea is the form of a ``public legal person`` that is to get its permission from relevant responsible authorities under the Korean Public Legal Persons Act. In addition, the public organization may take the form of a ``public trust`` that is to get its recognition from the Minister of Justice under the Korean Public Trust Act. In order to get its permission or recognition under its respective Act, both a public legal person and a public trust should satisfy the ``public benefit`` requirements, one of which is to carry on one or more ``public businesses`` listed its respective Acts. But there is one big difference between the ``public legal person`` regime and the ``public trust`` regime. That is the different scope of the listed ``public businesses``: while the ``public businesses`` stipulated in the former Act are much narrower than those stipulated in the latter Act. In this article, its is argued that since both the public legal person regime and the public trust regime plays the same function of generating public benefit, the scope of ``public businesses`` listed in the Acts shoud be equivalen. In a similar vein, it is argued here what is necessary is not only the unifying the scope of ``public benefit`` requirement but the unifying regulators who are responsible for reviewing the ``public benefit`` requirements. Currently, the application for a ``public legal person`` is to be reviewed by respective responsible authorities, while the application for a ``public trust`` is to be done by the Minister of Justice. It is argued that there shoul be a consolidated regulator who are responsible for reviewing both the ``public legal person`` and the public trust.

공익단체 규제 체제의 개혁-공익위원회 설립과 공익규제통합법 제정을 중심으로-

이중기 ( Choong Kee Lee ) 홍익대학교 법학연구소 2017 홍익법학 Vol.18 No.2

This article examines the current state of regulatory structure for public interest organizations or charities, and suggests some reformatory methods for better regulation. The article, firstly, raises the question why government intervention in charitable affairs should be justified and draws the answers firstly from the tax-exemptions granted to charitable organizations and secondly from the prohibition of shareholders in charities who may otherwise play a oversight role. After investigating the question why authorizations for charities are granted too rarely and thus most charitable activities are undertaken by unauthorized institutions, the article argues that current authorization system should be displaced with requirement system, in which the government should recognize the public interest status once designated requirements are met. This article also argues that establishing a single charity commission is preferable to current system granting regulatory powers to respective responsible governmental institutions. It is also proposed that current organizational laws under the fragmented jurisdiction of respective governmental institutions should be consolidated for the single Commission to do a better and consolidated job.

자율주행차의 발전단계로 본 운전자와 인공지능의 주의의무의 변화와 규범적 판단능력의 사전 프로그래밍 필요성

이중기 ( Choong Kee Lee ) 홍익대학교 법학연구소 2016 홍익법학 Vol.17 No.4

As technologies regarding autonomous driving advance from Level 2 to Level 3 automation, the role of a human in operating a car is diminishing and now expected to be replaced by an artificial intelligence(“AI”) embedded in an autonomous vehicle(“AV”). A question may arise as to the level of the duty of care that the replacing AI has to pay. This article argues that to the extent an AV takes over the role of a human driver in car operation the AI should play the same role as a human driver, and thus the level of the duty of care that an AI has to pay should be as high as the level that is reasonably expected of a human driver who controls his driving condition. This level of duty of care reasonably expected of an AI should also be reflected as a legal standard in the Automobile Safety Standard so that auto makers will be required to comply with in self-certifying their automobiles production. A more complex question may arise in Level 4 AVs, in particular, in respect of ethical issues, Because a steering wheel and a brake pedal disappear in Level 4 AVs, there is no room for a human driver to interfere in driving such a Level 4 AV. That means where the AV faces a conflicting duties whether legal or ethical duties, the AI in the AVs rather than a human have to decide whate to do by itself. Consequently, automakers should ex ante consider certain situations where its duties may conflict, and determine and programme what to do in advance. This requirement should also be implemented in the Automobile Safety Standard.

조직법의 물권법적, 계약법적 기초, 조직법의 고유한 특징과 기여1): 충실의무법의 발전

이중기 ( Choong Kee Lee ) 홍익대학교 법학연구소 2016 홍익법학 Vol.17 No.1

It is argued here that only trusts and corporations are real and complete organizations for the purpose of the private law because only those institutions can transfer and acquire properties on their own names, and can enjoy both protections of ``entity shielding`` and ``owner shielding``. Trust and corporate laws play three main organizational roles through the key means of providing its organization a separate legal capacity that acts as a ``nexus`` for asset partitioning and pooling. The first role that these organizational laws play is the partitioning and pooling of contributed assets through the medium of the new capacity. Their second role is to provide contributors their control and enjoyment mechanism for their pooled asset by designing the ``concept of beneficial shares`` in a new entity. Lastly, these laws offers the ``concept of organ`` for the new entity as an administration mechanism for the pooled asset. These three main organizaional functions performed by these two laws seem to have much similarity to those roles that are performed by either property law or contract law. Firstly, it is argued that organizational laws`` function of asset partitioning and pooling is not much different from the function of asset transfer in property law. Similarly, the concept of beneficial shares in a new entity is not much different from the concept of shares in joint-owning property under a joint ownership. Lastly, the concept of organ for a new entity resembles much mandatee agency for his mandator. From these similarities of the functions, it is argued that organizational laws have been constructed upon proprietary and contractarian foundations. This paper also deals with special nature of the organizational laws and their original contribution. As the trust and corporate laws provide a organization a new legal capacity as a nexus for asset partitioning and pooling, there always happens a separation of formal owner and beneficial contributors. It is argued that this special environment resulting from this separation has necessitated formal owner``s loyalty duty to beneficial contributors, and now both organizational laws have become the most important sources of fiduciary law.

충실의무와 선관의무의 작동방식; 충실의무의 선관의무 보충 역할에 대하여

이중기 ( Choong Kee Lee ) 홍익대학교 법학연구소 2015 홍익법학 Vol.16 No.4

In English law, fiduciary duties are considered to be proscriptive in nature. They operate negatively by prohibiting the fiduciary from acting in a particular way that could harm the principal``s interest, such as self-dealing with the principal. On the other hand, non-fiduciary duties of the fiduciary such as a fiduciary``s duty of care are to be prescriptive in effect, and operate positively by ordering the fiduciary to act in a particular way that could benefit the principal, such as paying due attention to or managing properly the principal``s affairs or properties. In this article, firstly, the function of the proscriptive fiduciary duties and that of the prescriptive non-fiduciary duties are compared, and then their relationship is investigated. It is argued here that the proscriptive fiduciary principles came into existence to ensure that a fiduciary will perform his non-fiduciary duties properly. In other words, fiduciary duties, derived from the concept of loyalty, are supplementary or subsidiary to non-fiduciary duties - their very existence is to secure that a fiduciary complies with their existing non-fiduciary duties.

충실의무자의 이익향유금지: 수탁자와 이사의 이익향유금지를 중심으로

이중기 ( Choong Kee Lee ) 홍익대학교 법학연구소 2015 홍익법학 Vol.16 No.3

The Revised Korean Trust Act fully received Anglo-American concept of fiduciary law. In particular, it declares two fiduciary principles, the no-conflict rule and the no-profit rule. The former requires the fiduciary to avoid conflict between personal interest and duty whrease the latter requires him to avoid making an unauthorized profit from his or her position as a fiduciary. The no-profit rule prohibits fiduciaries from obtaining a benefit by virtue of their position as fiduciary either for themselves or for a third party, unless the principal has given his or her fully informed consent to the fiduciary. This article investigates to what extent the Korean trust and corporate laws adopted such fiduciary concept and how the no-profit rule operate under the respective Korean Trust Act and the Korean Commercial Code. It argues that the default fiduciary law that is developed on the basis of Korean Trust Act should be applied to other kinds of fiduciary such as a director or a agent. This article firstly explains the contents of Korean no-profit rule that can be drawn from the Korean Trust Act and then explores whether and to what extent the trust no-profit rule can be applied to a company director. It argues that although corporate no-profit provisions apply firstly to directors`` profiting, the trust no-profit rule can also apply to the directors`` profit-making in order to fill the gap that are left by insufficient provisions in the Code.

주주간계약의 회사규범성과 그 한계 : 사적자치와 보충성의 원칙, 계약에 기한 특정이행청구의 가부를 중심으로

이중기 ( Lee Choong Kee ) 홍익대학교 법학연구소 2019 홍익법학 Vol.20 No.2

In this article, I have dealt with whether and to what extent contractual shareholder agreements are effective in corporate law context, and thus to be enforced against not only the participating parties as shareholders but the company or the directors. I put forward three suggestions for the contractual agreement to have binding force in corporate law context. Firstly, while the courts have distinguished a shareholder status of the agreements from that of a director strictly, I argued such differentiation can only be possible in corporate law context and not possible in individual law context: as the contractual agreement bind the party “personally”, the individual law cannot tell whether the party act in a shareholder capacity or a director capacity. Secondly, I argued that while shareholder agrements are basically contracts, they may work as supplementary constitutional documents if (i) all the shareholders participated in the agreement, (ii) the company itself participated in the agreement as a party, or (iii) there is an informal corporate decision-making that is equivalent to board or shareholder resolution. To that extent, the agreements binds not only shareholders but the company and directors. Finally, although shareholder agreements are subject to mandatory provisions in company law statutes, in a closed company context, the application of the mandatory provisions may be suspended if there is private ordering among members. This prevalence of private negotiation over the statutory provisions can be justified by the constitutional principle of subsidiarity.

조직법의 역할 : “재산통합”과 “지분”, “기관”, “유한책임”의 실현

이중기 ( Choong Kee Lee ) 홍익대학교 법학연구소 2015 홍익법학 Vol.16 No.1

Hansmann & Kraakman argued in their seminal article that essential role of organizational law is to provide a form of asset partitioning. One aspect of this asset partitioning is the shielding of the entity owners from claims of the creditors of the entity, but according to them the truly essential aspect of the asset partitioning is the shielding of the assets of the entity from claims of the creditors of the entity owners. In this article, the author doubts whether asset partitioning is the essential role of organizational law, and compares both procedures of organization setting-up and property transfer. The author argues that since the asset partitioning is found in the procedure of property transfer, the asset partitioning may not be the essential role of organizational law. The author puts more emphasis on the aspect of asset ``pooling`` found in the setting-up procedure that happens simultaneously with asset ``partitioning`` from the contributors. According to the author, asset pooling that happens under the ``new personality`` granted through the setting-up procedure is the truly essential aspect of the organizational law because the asset pooling triggers two intrinsic questions in organizational law: One is how the contributors can recognize and exert their benefitial power against the ``pooled assets`` that are owned by the new entity (ie. question of shares). The other is how the new entity can administer its ``pooled assets`` for their beneficial contributors (ie. question of organs). In this article, the author firstly tries to explain important aspect of asset pooling and then how the concepts of ``shares``, ``organs``, and ``limited liability`` are invented in respect of the ``pooled assets``.

신탁채권자에 대한 수익자의 책임 가능성 : 수탁자 보상청구권의 대위 및 보상청구권의 포기약정을 중심으로

이중기 ( Lee Choong-kee ) 홍익대학교 법학연구소 2005 홍익법학 Vol.7 No.-

Under the current Korean Trusts Act, where a trustee does not pay a trust creditor out of her own moneys or out of trust moneys, the creditor may have a claim by way of subrogation to the trustee`s right of indemnity against the trust estate or the beneficiaries personally. This article examines, firstly, what is the current law regarding the trustee`s indemnity rights and the trust creditor`s claim by way of subrogation to the trustee`s indemnity right and, secondly, whether the creditor`s derivative right particularly the right against beneficiaries is desirable as a matter of policy. If the creditor`s derivative right against beneficiaries is not desirable from a policy point of view, the next question should be how to restrict the potential liabilities of beneficiaries to the trust creditors. This articles answers the question by proposing an exclusion of liabilities clause for beneficiaries, and argues that such an exclusion clause in the trust instrument should be valid between the trustees and beneficiaries, and accordingly valid between the creditor and beneficiaries when the trust creditor claims by way of subrogation against the beneficiaries.

사모투자전문회사의 지배구조 -정관자치의 관점에서-

이중기 ( Lee Choong-kee ) 홍익대학교 법학연구소 2005 홍익법학 Vol.6 No.-

This article deals with the governance system in the Korean PEPs (Private Equity Funds) that are newly introduced in 2004 by amending the Indirect Investment Asset Management Business Act. Unlike other fund forms, in which the status of `managers` is conceptually separated from that of the `investors`, the PEPs should allow the manager to take up the investor position. That is the reason why the legislation adopted for the PEPs the form of the company with managing partners and non-managing members, in which the manager can be an investing partner. But, there are many potential problems in the operation of the PEPs, since the the company form with managing partners and limited liability members that is taken for the PEFs has never been popular in Korea: Due to the lack of the study on the relationship among the participants in the company, it is very likely that there may arise lots of unanticipated Questions on the governance system in the PEFs. First, this article investigate (i) what are the powers and status of the managing partners and non-managing members, and then (ii) whether and how these different status of the members may lead to the conflict of interest situations among the participants. Secondly, the article classifies the kinds of conflict of interest situations arisen among the participants into three categories, according to their different status. Finally, the article offers solutions to solve these conflict of interest situations by providing conflict resolving mechanism and monitoring mechanism for the non-managing members. Particularly, this article argues for the introduction of the members` assembly In the PEPs, and emphasises the importance of the members` assembly for dealing with members` conflicts from the autonomy`s point of view.