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논문 기본 정보
- 자료유형
- 학술저널
- 저자정보
- 발행연도
- 2011.8
- 수록면
- 155 - 168 (14page)
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초록· 키워드
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In Japan, there are many troubles about the corporate divestiture (division of the company) recently, because the Japanese system of the corporate divestiture is not perfect.
In the article of 789-1-2 and 810-1-2 of the Japanese company law, the creditor, who can claim their credit to the divided company, can’t object about the division of the company. Because the divided company can gain the quid pro quo from the new company, which equals the transferred assets. But, for practical purposes, they can’t gain it in many cases.
About this problem, many Japanese professors and many Japanese courts think that they can use the article of the creditors’ power to avoid the fraudulent transfer (article. 424 of the Japanese civil law). But, I think that there are many theoretical problems in the use of this article for the fraudulent transfer. For example, can we use this article for ‘the organized act’? In my opinion, we should use the theory of ‘the piercing the veil of corporate entity’ or ‘lifting the veil of corporate entity’ in this case, and additionally, we should legislate special article for the guard of creditor in Japanese ‘company law’.
In the article of 789-1-2 and 810-1-2 of the Japanese company law, the creditor, who can claim their credit to the divided company, can’t object about the division of the company. Because the divided company can gain the quid pro quo from the new company, which equals the transferred assets. But, for practical purposes, they can’t gain it in many cases.
About this problem, many Japanese professors and many Japanese courts think that they can use the article of the creditors’ power to avoid the fraudulent transfer (article. 424 of the Japanese civil law). But, I think that there are many theoretical problems in the use of this article for the fraudulent transfer. For example, can we use this article for ‘the organized act’? In my opinion, we should use the theory of ‘the piercing the veil of corporate entity’ or ‘lifting the veil of corporate entity’ in this case, and additionally, we should legislate special article for the guard of creditor in Japanese ‘company law’.
목차
Abstract
はじめに
1. 詐害的?社分割に?して法人格否認の法理を援用した２つの裁判例
2. 詐害的?社分割に?する詐害行?取消?(民法424?)援用の現?
3.詐害的?社分割に?して詐害行?取消?(民法424?)を援用することへの問題提起
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