韓國商事法學會 半世紀의 措 ㅁ

이범찬 한국상사법학회 2002 商事法硏究 Vol.21 No.1

회사법의 과제들 - 2019년 (사)한국상사법학회 하계대회 기조발제문 -

김정호 한국상사법학회 2019 商事法硏究 Vol.38 No.3

Nowadays we have so many opportunities to watch the phenomina surrounding technical innovations, like artificial intelligence or blockchain etc., so that we cannot escape from the daily unstableness. Not a few people could also experience some feelings of isolation, due to the newly upcoming expressions like robo-adviser, robo-directors, electronic person and DAO. In this article the author tried to show some tasks out of corporate law at present time in Korea. He explores, at first, the possibilities to introduce a separate statute specialized for company law in Korea, where the traditional Commercial Code has so far maintained a stable position. It was enacted in 1962 and has been implemented since 1963. The U.S. State of Delaware has its 'General Corporation Law' and U.K. has also its separate 'Companies Act', which was revised on a large scale in 2006. The author offered a comparative review on various cases of legislation, which took place in some civilized countries like U.S., Germany and Japan. The second task was to solve the problem of 'personalized stock corporation (private companies)', which was triggered predominantly by the overwhelming number of stock corporations in korean economy. The legal form of stock corporation enjoys there an extreme popularity in comparison to the other legal forms. It now takes up over 90% out of all registered companies, which have been established according to the Korean Commercial Code. It is clear that the 'personalized' stock corporation is a stock corporation in legal meaning, but its substance is nothing more than a partnership. The author says that a separate or classified legislation is needed according to the size of the company. The third assignment of this article was to resolve the confrontation between the bills on economic democratization and those on defense of management right. The author suggested that the institute of double derivative suit should be implemented also in Korea via common law by accumulating relevant cases and the dual-class-stock system needs to be introduced also in Korea, like any other civilized countries. The fourth task was to promote the development of the law of fiduciary duties in Korea. The author emphasizes the importance of procedural aspect for court decisions. At last he made some possible mentions on the interplay between artificial intelligence and company law. Due to its rapid technological development, nobody denies nowadays that artificial intelligence can enter corporate boardroom in near future. The author concluded that it is necessary for corporate lawyers in Korea to take steady steps to perform the above-mentioned assignments. 본고에서 필자는 회사법의 당면과제를 다루고 있다. 첫째는 회사법을 독립된 법률로 하는 문제이다. 기존의 상법전에서 회사법을 떼어내 독립된 법률로 할 경우 예상되는 문제점들을 서술하였다. 둘째는 주식회사의 법형태가 압도적으로 다수를 점하는 국내 회사의 현실 속에서 인적 주식회사의 문제를 다루었다. 필자는 지난 60년간 우리 경제의 극심한 변화를 고려하여 특히 주식회사법 분야에서는 기본적인 변화가 불가피하다고 주장한다. 즉 과거 대규모 공개회사 위주의 법제에서 오히려 방향을 바꾸어 우리 경제에서 가장 다수를 점하고 있는 폐쇄형 주식회사를 원칙적인 모습으로 한 후 공개회사나 상장사에 대해서는 추가로 특례규정을 두는 방식에 비중을 두어야 한다고 주장한다. 셋째는 경제민주화법안과 경영권 방어법제간의 갈등을 다루었다. 이에 있어서 이중대표소송제도를 판례법으로 도입하는 것과 복수의결권 주식제도의 도입을 주장하고 있다. 넷째는 기타의 문제들로서 인공지능이 회사법에 미칠 영향 나아가 이사의 신인의무법의 발전방향에 대하여 언급하였다. 끝으로 필자는 경제기반의 변화에 즉응하는 회사법제의 구축은 난제중의 난제이지만 서두르지 말고 꾸준히 비교법적으로 접근하는 자세가 필요하다고 주장하고 있다.

감사위원회제도에 관한 연구

김상규 한국상사법학회 2002 商事法硏究 Vol.20 No.4

주식회사의 計算 公開에 관한 日本商法의 改正試案에 대한 고찰

김두환 한국상사법학회 1980 商事法硏究 Vol.1 No.-

일본의 금융상품거래업에 대한 규제 동향 및 시사점 ― 금융상품거래업자 등의 행위규제를 중심으로 ―

이효경 한국상사법학회 2009 商事法硏究 Vol.27 No.4

This paper introduces the recent developments forcusing on the regulation contents set by a Japanese the Financial Instruments and Exchange Law and a movement about regulation of a financial institution. With the development of financial technologies, some financial products not covered in the current regulations for user protection have been appearing, and there have been also cases of users suffering damages. It is necessary to compile comprehensive and cross-sectional rules for user protection and to develop an environment where users can invest with confidence. In order to respond to these issues, the bills to develop the legislative framework for financial instruments and exchange were approved in the ordinary Diet session in June 2006. The name of the Securities and Exchange Law will be amended to the Financial Instruments and Exchange Law. The four laws will be abolished to be consolidated into the Financial Instruments and Exchange Law. In the Financial Instruments and Exchange Law, it is stipulated that financial instruments firms should comply with the following rules of conducts(rules for sales and solicitation)in conducting sales or solicitation of securities or derivative transactions. For example, “Obligation to deliver document in a written format at the time of a contract”, “a ban on unwanted solicitation” and “Principle of appropriateness” activities and the like. From the point of view to more flexible regulation on conduct of businesses, all customers for financial instruments firms are categorized into “professional investors” or “general investors,” some of them may apply for a change of status from one to the other. In this revision, concerning “sales and solicitation” activities for deposits and insurance with strong investment characteristics, the Banking Law, the Insurance Business Law, and the like, have been amended so that the same regulation for user protection(rules for sales and solicitation)as those under the Financial Instruments and Exchange Law will be applied to them. In this legislative revision, the scope for civil money penalties and criminal penalties will be enlarged to be applied to market manipulation. In order to ensure user protection, secure fairness and transparency in transactions, and establish public confidence in the markets, the current level of penalties under the Securities and Exchange Law will be increased concerning violation of disclosure requirements and unfair trading. Through the present regulation related to a Japanese financial service, it is necessary to expedite efforts to the preparation and correspondence of the Capital Market and Financial Investment Services Provider Act in Korea.

미국 셔먼법상 독점화 행위인 단독의 거래거절의 위법성 판단기준 -의도기준의 유용성을 중심으로-

문정해 한국상사법학회 2011 商事法硏究 Vol.30 No.1

The antitrust laws are concerned with two anticompetitive conducts,collusion and exclusion. However, it has been difficult to decide how to determine whether exclusionary conducts are anticompetitive. Under Article 2of the Sherman Act of the U.S., unilateral refusals to deal are illegal only when they constitute monopolization or attempted monopolization. That is,the plaintiff must show that the defendant is a monopolist and that his refusal to deal is anticompetitive exclusionary conduct, as shown in unilateral-refusal-to-deal cases that quoted the Colgate dictum. Nevertheless,courts and scholars have long proposed colorful tests, because the Sherman Act’s requirements on monopolization and an attempt to monopolize give only vague answers for the standard of illegality on a unilateral refusal to deal. One of the tests is the intent test. In adopting the Colgate dictum to judge the illegality of a unilateral refusal to deal, courts have long showed interest in how to interpret a monopolist’s intent or purpose. However,influenced by the Chicago School and the post-Chicago School, which stress a strict economic approach to antitrust analysis, courts have generally dismissed intent as having minimal value in determining antitrust liability, in particular, in monopolization cases. Although the Supreme Court revived the role of the intent test in Aspen, at least in unilateral-refusal-to-deal cases, it narrowly circumscribed Aspen’s application in Trinko several years later. By examining the usefulness of the intent test by analyzing Aspen’s intent inquiry with a monopolist’s profit sacrifice being merely one indicator of a monopolist’s intent with Trinko’s rule, which treated a monopolist’s profit sacrifice simply as an element of exclusionary conducts, and by trying to find that the Chicago School and post-Chicago School’s economic theories are indeterminate, this article argues that the intent test can provide further guidance and serve as a proxy for anticompetitive effect, and that the Korean Supreme Court Decision 2002Du8626 used the intent test appropriately.

1인 이사 주식회사의 감사제도에 관한 고찰

김광록 한국상사법학회 2016 商事法硏究 Vol.35 No.1

Corporate organizations under the Korean Commercial Code are consist of decision making organization, executive operating organization and auditing organization. Decision making organization includes a shareholders meeting; executive operating organization includes board of directors and representative director; and auditing organization includes auditor and auditing committee. However, recent trend of corporate governance towards to, so called, the centerism of board of directors from the centerism of shareholders meeting and of corporate size keeps enlargement. However, among corporations in Korea 82% of corporations are mid- and-small size corporations and only 18% are large corporations. But those 18% of corporations lead the Korean economic market. Therefore, it is true that the Korean Commercial Code just concentrates on those large corporations to regulate them in the market. Provided, the Korean Commercial Code allows the small size corporation dose choose not to have the board of directors and audits. Thus, the small size company may or may not have the board of directors or audits. Having the board or audit depends on its own choice. Since audit system is an essential to corporations, once the small size corporation choose not to have it, director or shareholders meeting should do audit’s function instead under the Korean Commercial Code. However, the Korean Commercial Code lacks some suitable regulations for auditing of the small size corporation. This Article basically examines the audit system of the small size corporation under the Korean Commercial Code in order to analyze the present Korean Commercial Code for the audit system and to promote the betterment of the audit system of the small size corporation.

삼성물산 합병을 통해 바라본 주주이익 보호의 문제점과 개선방향 - 에버랜드의 재림(再臨), 그 극복을 위한 제언 -

이상훈 한국상사법학회 2015 商事法硏究 Vol.34 No.3

With respect to the merger between Cheil Industries Inc. and Samsung C&T Corporation(hereinafter, “the Company”), there are three issues that can be discussed in light of shareholders’ proportionate interests and unjust wealth transfer between affiliate group shareholders and the residual non-group shareholders. The first question is the timing and the disclosure as to the merger. This question will include how the merger was timed and how the information thereof was disclosed in order to address the conflict of interests of the directors of the Company who were appointed by Samsung Group. Weinberger v. UOP case (Del. Suppr. 1983) will shed much light on this issue, where the court ruled that fiduciary duty shall include the question of how the transaction was timed, initiated, and structured in a self-dealing situation. The second question is whether the directors took any actions to explore other options than the merger which should be subject to the Capital Market Act, where the merger ratio would not be favorable towards the non-group shareholders in the Company. The alternative option would include to distribute to the shareholders or sell in the market the listed stocks which the Company held and of which the market value was higher than that of the Company itself. The third question is the Revlon duty under the sale of control situation in light of that the Company’s ownership structure would be changed from “fluid” or “weekly concentrated” to “concentrated” or “significantly concentrated” due to the merger with Cheil Industries Inc., which had the higher concentrated ownership structure. This feature is in the wake of Paramount v. QVC Network the Delaware case and Revlon. While these issues are essential for the shareholder interests, they were not spotlight in the litigation in Korea between the Company and Elliot, the hedge fund. The reason is due to two factors: one is the Korean Supreme Court’s ruling under Everland case which declared that shareholders’ interests are not protected by the fiduciary duty of the corporate directors, and the other is the Korean Commercial Codes which is hardly aware of the notion of affiliate entities and conflicts of interests between shareholders. These two are the main factors of so called “Korea Discount” in the Korean stock market, which should be lifted and revised by introducing the notion of corporate fiduciary duty towards the proportionate interests of shareholders as in the US corporate laws.

감사위원회 위원의 선,해임에 관한 연구

김상규 한국상사법학회 2005 商事法硏究 Vol.23 No.4

監事는 會計監査를 하지 않는다 - 상법 회계관련 규정의 규범성에 대한 斷想 -

오수근 한국상사법학회 2014 商事法硏究 Vol.33 No.3

The accounting clauses of the Commercial Code(“the Code’) had been amended three times since its enactment in 1962. The amendments have focused on narrowing gaps between accounting clauses and accounting practices. More important task than such synchronization would be to revive the normativity of accounting clauses. The author suggests how to make accounting clauses workable and applicable in accounting practices pointing out some clauses which might not be working as a norm in practice. There are two clauses of which normativity is doubted. The one is a clause that the auditors shall perform accounting audit in practice. The other is one that the merchants, to which the Code applies, shall prepare accounting records as required by the Code. Auditors appointed by the Code usually are not competent for accounting audit. Independent auditors under the Act of External Audit of Stock Companies have played professional roles in accounting audit. It should be examined whether the merchants prepare accounting records in practice. It is doubtful why the phrase of ‘generally fair and legitimate accounting practices’ are repeated three time in the Code. As the presidential implementation order of the Code lists three accounting standards, it is not certain whether the phrase has any meaning in establishing any accounting standards. It is also controversial that the Code uses terminologies, including commercial books, accounting books, balance sheet and reserve funds, which have not been used in accounting practices without any explanation.