지원사업
학술연구/단체지원/교육 등 연구자 활동을 지속하도록 DBpia가 지원하고 있어요.
커뮤니티
연구자들이 자신의 연구와 전문성을 널리 알리고, 새로운 협력의 기회를 만들 수 있는 네트워킹 공간이에요.
논문 기본 정보
- 자료유형
- 학술저널
- 저자정보
- 발행연도
- 2023.11
- 수록면
- 109 - 136 (28page)
- DOI
- 10.35227/HYLR.2023.11.34.4.109
이용수
초록· 키워드
오류제보하기
The Commercial Act grants legal personality to companies (Article 169). However, when the company is not independent from its members, the legal personality of the company is not recognized in the problematic legal relationship between the company and a specific third party, but the company and its employees are identified, and the responsibility of the company is placed on the employees. This is called the theory of piercing the corporate veil. It was created and developed based on American precedents from the late 19th century to solve the evils of shareholders abusing limited liability in corporations. However, controversy has recently emerged regarding the reverse application of the theory of piercing the corporate veil, which holds an employee accountable to the company. Accordingly, focusing on three recent Supreme Court Decisions regarding the reverse application of the theory of piercing the corporate veil, we looked for a reasonable solution by reviewing the application requirements of the theory of piercing the corporate veil, theories and precedents related to its reverse application, and foreign trends.
First, with regard to the requirements for applying the theory of piercing the corporate veil, 1) it is natural that the company has no independent existence or its own will, and that the controlling shareholder must exercise complete control, such as running the company as if it were a personal business, and there is no particular problem for other shareholders. Since this should not occur, it is necessary to demand more strict control over the company, such as a legally one-person company or a de facto one-person company. 2) In the case of insufficient capital, which is discussed along with the requirement that the company does not have the ability to repay, it is not reasonable to add it as an objective requirement of the theory of piercing the corporate veil, and it is reasonable to only consider it as an additional consideration. 3) If the subjective factor of intent to abuse corporate personality is added as a requirement for application of the theory of piercing the corporate veil, it may actually reduce the effectiveness of the theory of piercing the corporate veil due to the difficulty in proving it, so it is reasonable to believe that the subjective requirement is not necessary.
Next, in order to ensure legal stability, reverse application of the theory of piercing the corporate veil is undesirable, and therefore, in principle, it should not be recognized. The theory of piercing the corporate veil itself is not based on positive law, contains the risk of jeopardizing the principle of limited liability of shareholders, which is a mandatory regulation, and in fact results in the refund of investment to shareholders, which is the primary protection of corporate property. This is because it is very unreasonable to even acknowledge the reverse application of the commercial Act, as the subject may even infringe on the commercial law"s idea of being a creditor. However, this is an extremely exceptional case in which there is no special problem even if the reverse application of the theory of piercing the corporate veil is acknowledged because the company is comprised only of the controlling shareholder and those who share economic interests with him. Additionally, this is an exception when there is no effective protection measure other than reverse application. Therefore, the theory of piercing the corporate veil must be acknowledged.
First, with regard to the requirements for applying the theory of piercing the corporate veil, 1) it is natural that the company has no independent existence or its own will, and that the controlling shareholder must exercise complete control, such as running the company as if it were a personal business, and there is no particular problem for other shareholders. Since this should not occur, it is necessary to demand more strict control over the company, such as a legally one-person company or a de facto one-person company. 2) In the case of insufficient capital, which is discussed along with the requirement that the company does not have the ability to repay, it is not reasonable to add it as an objective requirement of the theory of piercing the corporate veil, and it is reasonable to only consider it as an additional consideration. 3) If the subjective factor of intent to abuse corporate personality is added as a requirement for application of the theory of piercing the corporate veil, it may actually reduce the effectiveness of the theory of piercing the corporate veil due to the difficulty in proving it, so it is reasonable to believe that the subjective requirement is not necessary.
Next, in order to ensure legal stability, reverse application of the theory of piercing the corporate veil is undesirable, and therefore, in principle, it should not be recognized. The theory of piercing the corporate veil itself is not based on positive law, contains the risk of jeopardizing the principle of limited liability of shareholders, which is a mandatory regulation, and in fact results in the refund of investment to shareholders, which is the primary protection of corporate property. This is because it is very unreasonable to even acknowledge the reverse application of the commercial Act, as the subject may even infringe on the commercial law"s idea of being a creditor. However, this is an extremely exceptional case in which there is no special problem even if the reverse application of the theory of piercing the corporate veil is acknowledged because the company is comprised only of the controlling shareholder and those who share economic interests with him. Additionally, this is an exception when there is no effective protection measure other than reverse application. Therefore, the theory of piercing the corporate veil must be acknowledged.
목차
Ⅰ. 서설
Ⅱ. 대상판례의 사실관계와 판결요지
Ⅲ. 대상판례의 주요쟁점과 관련문제
Ⅳ. 결론
참고문헌
Abstract
참고문헌 (0)
참고문헌 신청함께 읽어보면 좋을 논문
논문 유사도에 따라 DBpia 가 추천하는 논문입니다. 함께 보면 좋을 연관 논문을 확인해보세요!
-
법인격 부인론의 역적용에 대한 소고 - 대법원 2021. 4. 15. 선고 2019다293449 판결을 계기로 -
법학논집
2021 .01
-
주주유한책임의 예외와 법인격부인에서의 논리구성과 정당화 근거
법학논고
2024 .07
-
법인격부인론의 역적용에 대한 비교법적 검토 - 대법원 2021. 4. 15. 선고 2019다293449 판결과 미국 판례법을 중심으로 -
입법학연구
2022 .08
-
최근 판례를 통해 본 중국 회사법상 법인격부인론의 적용에 관한 고찰
기업법연구
2020 .12
-
법인격부인의 역적용과 조직격리
법조
2022 .08
-
법인격남용론의 적용요건에 관한 판례 법리의 유형론적 고찰
가천법학
2016 .01
-
법인격 부인의 역적용 : 대법원 2021. 4. 15. 선고 2019다293449 판결을 글감으로
기업법연구
2022 .09
-
법인격부인의 요건 - 대판 2016. 4. 28, 2015 다 13690 의 평석을 겸하여 -
경영법률
2019 .01
-
영미법상 법인격부인론과 직접책임론에 대한 비교법적 고찰
비교법연구
2022 .08
-
편린(片鱗)인가, 흔적(痕迹)인가? - 호주의 위법한 불사조 행위 규제에 대한 연구 -
비교사법
2023 .02
-
회사의 법인격부인론에 대한 소고
법학논총
2022 .09
-
광주신세계사건과 모회사 이사의 충실의무 - 법인격부인론의 시각에서 본 대판 2013. 9. 12, 2011 다 57869 -
경영법률
2015 .01
-
2023년 회사법 판례 회고
상사판례연구
2024 .03
-
모자회사의 불법행위와 기업책임 이론
법학연구
2018 .01
-
한국과 중국의 법인격부인 법리의 비교연구
Journal of China Studies
2016 .01
-
회사 개념의 현대적 수정에 관한 소고
법학연구
2017 .03
-
미국 재판관할법상의 법인격부인론
국제사법연구
2016 .12
-
회사 법인격의 형해화 및 남용 여부의 판단기준 - 대법원 2016. 4. 28. 선고 2015다13690 판결 -
법조
2018 .01
-
2023년 회사법 중요판례평석
인권과 정의
2024 .03
-
2019년 회사법 중요판례평석
인권과 정의
2020 .01
이 논문과 함께 이용한 논문
최근 본 자료
댓글(0)
0