경제환경의 변화와 회사법의 입법방향 = Policy and Legislative Directions of Corporate Law Amendments in the Midst of Changes in Economic Environment

다국어 초록 (Multilingual Abstract)

Over fifty years have passed since the Korean Commercial Act came into force in 1963. The Korean Commercial Act has been amended about twenty times so far, and the recent amendments made in 2011 represent the most large-scale revisions to the Act since its inception. The 2011 amendments have mainly amended the part of corporate law under the Korean Commercial Act in order to strengthen the competitiveness of Korean companies in international markets by establishing effective forms of corporate governance and market-oriented discipline. For instance, not only the regulatory scope of self-dealing restrictions is extended, but also the prohibition from usurping corporate opportunities, which is suitable for calling a revolutionary change in the business world, is newly introduced.
At the beginning of new government in 2013, a new amendment proposal of the Korean Commercial Act was published. This is politically a fulfillment of the president’s public promise and legally a complementary measures for the 2011 amendments. The contents of the 2013 proposal include: the separate election of director who will be a member of audit committee in the listed corporation and a voting right limitation to any shareholder who holds more than 3/100 of the total issued and outstanding shares; introduction of the cumulative voting system and a mandatory electronic voting system in the listed corporation; introduction of double derivative suits; and prohibition of concurrently assuming the status of both officer and a chairman of the board of directors in the corporation which established a audit committee, including a enforcement of a officer system. The distinctive feature of the 2013 proposal is that most rules are mandatory ones applicable to the listed corporation or the corporation which is determined by Presidential Decree in consideration of the size of assets, etc. It is a very strong legislative approach compared with the 2011 amendments, which admits corporate self autonomy. The 2013 draft bill is ineffective at present due to the business group’s strong resistance, but there are rooms still left for the reargument in future.
Nevertheless, Korean corporate law will be continually developed, globalized, and settled down through the efforts of resolving difficult conflicts around the corporation. How can we develop effectively our corporate law? It is a task of us all.
This paper as a whole examined the recent amendment progress of corporate law, globalization of the corporate law, and some core legal issues related to Korean corporate law, which includes as follows: problems of severely unbalanced use of corporate forms, making a independent code of corporate law, difficulties in corporate governance, revitalization of the electronic shareholder’s meetings, fiduciary duty of the controlling shareholders, reorganization of the corporation. Finally, the author of this paper emphasized the appropriate role and the mission of corporate law to advance the aggregate national welfare by quoting the statements of other prominent scholars.

참고문헌 (Reference)

1 박길준, "회사법의 회고와 과제" 10 : 1992

2 정호열, "회사법의 현대적 과제" 한국법학교수회 (1) : 1998

3 김건식, "회사법연구Ⅰ" 소화 2010

4 홍복기, "회사법강의" 법문사 2011

5 임홍근, "한국상법전 50년사" 법문사 2013

6 이범찬, "한국 회사법 50년의 회고" 한국법학교수회 1 : 1998

7 박원선, "학술연구생활회고록" 대한민국 학술원 1983

8 임재호, "주식회사법대계 Ⅰ" 법문사 2013

9 홍복기, "전자주주총회의 도입" 22 (22): 2003

10 연세대학교 국학연구원, "연세국학연구사" 연세대학교 출판부 2005

11 이철송, "신세기회사법의 전개, 우전 이병태교수 화갑기념" 1996

12 손주찬, "상법전 제정에 대한 소견" 10 (10): 1961

13 양승규, "상법(회사편)의 개정방향과 과제<座長의 말씀>" 한국법학원 (94) : 60-60, 2006

14 임중호, "기업환경의 변화와 주식회사법의 발전방향" 한국비교사법학회 (창간) : 1995

15 김건식, "기업지배구조와 법" 도서출판 소화 2010

16 "국세통계연보"

17 공정거래위원회, "공정거래백서" 2013

18 劉俊海, "現代公司法" 法律出版社 2008

19 Franklin A. Gevurtz, "the Globalization of Corporate Law: the End of History or a Never-Ending Story?" 86 (86): 2011

20 Henry Hansmann, "the End of History for Corporate Law" 89 : 2001

21 Kres imir Pirs, "Trends, Developments, and Mutual Influences between United States Corporate Laws and European Community Company Laws" (Spring) : 2008

22 Leech, "Transaction in Corporate Control" 104 (104):

23 Bayless Manning, "The Shareholder’s Appraisal Remedy : An Essay for Frank Coker" 72 (72): 1962

24 Laurel S. Terry, "The Legal World is Flat: Globalization and its Effect on Lawyers Practicing in Non-Global Law Firms"

25 John Armour, "The Essential Elements of Corporate Law, University of Oxford" 2009

26 Kent Greenfield, "Saving the World with Corporate Law?" 2007

27 Harry G. Henn, "Laws of Corporations" 1983

28 Lattin, "Equitable Limitation on Statutory or Charter Powers given to Majority Stockholders" 30 (30):

29 Paul Davies, "Enron and Corporate Governance Reform in the UK and the European Community, in after Enron : Improving Corporate Law and Modernising Securities Regulation in Europe and the US 415" Hart Publishing 2006

30 Robert W. Hamilton, "Corporations Including Partnerships and Limited Liability Companies" West 2003

31 James D. Cox, "Corporations" Aspen 2003

32 Harwell Wells, "Corporation Law is Dead’ : Heroic Managerialism, Legal Change, and the Puzzle of Corporation Law at the Height of the American Century" 15 (15): 2013

33 유진희, "21세기 한국상사법학의 과제와 전망" (13) : 2001