주식회사의 법인격의 별개성 再論 －"에버랜드 판결"에 대한 비판적 고찰을 통하여－

초록

This paper deals with the distinct legal personality of the corporation through reviewing several Korean corporate law cases. Among them, I focus on the recent “Everland Convertible Bond Case”, in which the managers issued new convertible bonds(hereinafter “CBs”)to the controlling shareholder for less than fair market value. The Korean Supreme Court(hereinafter “KSC”) held that the defendant-corporate directors had not breached their fiduciary duties in issuing new CBs for less than fair market value. The core question is whether corporation or its shareholders suffer damages by issuing CBs to the non-shareholders at a discount. The KSC concluded that both corporation and its shareholders received the damages. This paper argues that the KSC’s conclusion should be subject to the close theoretical examination. Moreover, this paper deals with what the KSC’s decision means. One of the basic legal characteristics of the corporation is legal personality. The corporation as a distinct legal person serves as a single contracting party that is distinct from its owners, shareholders. This paper argues that the KSC overemphasizes on the distinct legal personality of corporation, and ignores that the profit and loss of corporation ultimately belong to its shareholders. The corporation has assets that are distinct from other assets owned by its shareholders. It does not mean shareholders are not the ultimate owners of the corporation. This paper concludes that damages by issuing the CBs for less than fair market to the entire existing shareholders.

키워드