미국 델라웨어주 회사법이 우리 회사법에 미친 영향 = The Influence of Delaware Corporate Law on the Korean Company Law

다국어 초록 (Multilingual Abstract)

Nobody denies nowadays in Korea, that the Delaware Corporate Law has been firmly rooted in this region. Due to the long-lasting political and economic ties between the two nations, the convergence in corporate governance is to be easily ongoing. Especially in the field of fiduciary duty of directors and officers, normally at the publicly held corporations in Korea, this trend seems to be at the highest level. The business judgement standard, Caremark standard and the so called 'Red-flag'-test have been firmly introduced in various judicial reviews in Korea. Furthermore in takeover-law for example, we can see the same trend in the famous court case of "Hyundai Elevator" from the Korean District Court of Suwon (Yeo-ju Sub-District), where the judge used the 'Unocal'-standard for his reasoning. The "valid business purpose"-test in the sqeeze-out cases was also implemented in the revised ( in the year of 2011) Korean Commercial Code Book.
As a limitating factor to the phenomenon "convergence in corporate governance" in the region, we can, first of all, point out the geological difference, which is released from the two nations. In U.S., the reasonable-thinking shareholders of publicly held corporations never attend to the shareholders' meeting due to the 'cost and time'-problem. But in Korea, a shareholder can visit his or her shareholders' meeting with ease. So the litigation over the procedural defectness from the resolutions of shareholder meeting is so popular in the region as the derivative suit in U. S. Until now the convergence has been always on the one-way path ; namely from U. S. to Korea. But in future the author hopes a convergence in corporate governance between the nations through a interacting way.

참고문헌 (Reference)

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3 Herzel, "The Delaware Law of Corporation and Bisiness Organizations, 2nd ed" 1994

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5 Funk, "In re Caremark International Inc. Derivative Litigation; director Behavior, Shareholder Protection and Corporate Legal Compliance" 31 : 311-,

6 Gilson, "Globalizing Corporate Governance ; Convergence of Form or Function" 49 : 329-, 2001

7 Alva, "Delaware and the Market for Corporate Charters ; History and Agency" 15 : 901-902, 1990

8 Procter, "Corporate Governance" Cavendish Publishing 2002

9 Allen-Kraakman-Subramanian, "Commentaries and Cases on the Law of Business Organization, 2nd ed" Kluwer