회사의 동일성, 채무면탈 목적과 법인격부인론의 적용 －대법원 2010.1.14. 선고 2009다77327 판결－

Abstract

In this case the Supreme Court said that if the new corporation which has the same type and content as a corporation, was incorporated to evade the debt of a corporation, then the legal entity of new corporation was misused and it wasn't permitted to assert that two corporations have independent legal entity. In deciding the sameness of two corporations, the Supreme Court considered the sameness of corporate addresses, business objects, business facilities, directors, officers, shareholders and employees of the corporations. There are questions in this decision. First, the Court showed several elements to decide the sameness of two corporations. This consideration is based on the sameness of the type and contents of corporations to deny the dependent legal entity of corporation. However I think the misuse of corporate entity should be decided first by the effect of incorporation on the recovery of claims rather than sameness of corporations. Second, I think the several elements should not be considered throughly. The Court said that several situations should be judged overall and there are no judgement about the importance of individual element. To decide the misuse of legal entity the sameness of governance relation between two corporations and the evasive intent of claim should be accounted. The Court used to judge the case of evasion on the same reason. It should be dealt with the problem of the case in that creditor didn't be fully satisfied in addition to the case of evasion of debt. Creditor hasn't the sufficient means to satisfy, while a corporation is easily incorporated to evade the debt. To prevent this evasion, it would be important that the Court disregard positively the legal entity of the corporation which was misused.