법인격부인의 적용요건에 관한 대법원 판결에 대한 검토

Abstract

In this paper, we review the validity of the theory of complementary application in regards to the Supreme Court rulings on requirements for piercing the corporate veil between an existing company and a newly established one. According to the theory of complementary application, one should not disregard the corporate entity when one is able to be reimbursed by applying actual regulations or traditional judicial theory. It is however questionable whether this theory is reasonable in practice. This is because if a creditor exercises his right according to actual regulations or traditional judicial theory, but may pierce the corporate veil only when he cannot be reimbursed, a question arises as to who bears the burden of proving the fact. It is difficult to impose the burden on either the creditor or the debtor. According to the Supreme Court ruling on incorporation or abuse of corporate personality introduced in this paper, the transferring of assets to the defendant foundation by the third party 2, a natural person, for the purpose of debt evasion is not an abusive behavior that is worth piercing of the corporate veil. The necessity of protecting corporate property should be compared with and weighed against the necessity of protecting creditors when the matter of piercing the corporate veil is determined. it is possible for the third party 2, who controls the defendant foundation, to exert influence on the defendant foundation in regards to the management of assets such as the transferred real estate. The defendant foundation gained a profit by acquiring the real estate at no cost, and the transfer of real estate resulted in the plaintiff suffering a loss because he could not be reimbursed for his bonds. It is reasonable to pierce the corporate veil in order to protect the creditor who suffered a loss when he could not be reimbursed for his bonds. According the Supreme Court, the shareholders of the parent company are not allowed to bring a double derivative suit, because the parent company and the subsidiary company are separate corporate entities, and article 403 of the Commercial Law limits the right to bring a representative suit to the shareholders of the company to which the accused director belongs. If one applies the Supreme Court’s legal principle on requirements for piercing the corporate veil, is it possible to bring a double derivative suit? Even if the requirements are satisfied, the creditor of the subsidiary company is only allowed to call the parent company to account based on piercing of the corporate veil. Therefore, if one applies this legal principle, one cannot reach the conclusion that the minority shareholders are able to bring a double derivative suit. It is not fair when the person who embezzles the net asset of the subsidiary company is able to keep an unfair profit because double derivative suits are not allowed, and the minority shareholders of the parent company who suffers a loss cannot be reimbursed for the damage. When an abuse of corporate personality results in unfairness, it is reasonable to pierce the corporate veil and allow double derivative suits in order to protect the right holders.