상사법제의 쟁점과 전망
Issues and Prospects in the Studies of the Korean Commercial Law
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The year 2008 celebrates the 60-year anniversary of the establishment of the Korean government. 2008 is also the 55th year since the Korean Commercial Code was put in force. Since the code was promulgated on January 20, 1962 and came into effect on January 1, 1963, rapid strides have been made in the studies of the commercial law. But still, as the economic environment of Korea and the world changes rapidly whereas the legislation hardly manages to keep up, there is a need to accelerate the process of building more advanced commercial law system. This article will provide an overview of significant changes of commercial law during last 55 years, and will try to define an ideal future prospect. The Corporate Law part of Korean Commercial Code has adopted several factors of U.S. Corporation Act from beginning, and has become even more similar to U.S. law due to recent amendment. Corporate Law of Korea came to adopt U.S. Corporation Act via Japanese law. The 1950 amendment of Japan's Corporate Law has been affected by the corporate statutes of Illinois. Thus, it is safe to assume that MBCA and Japan's Corporate Law share essentially the same groundwork. Korean Corporate Law, modeling after the Japanese Commercial Code that was amended in 1950, eventually is founded on the Illinois Business Corporation Act of 1933 as well. The recent trend in amendment of Korean Corporate Law is that the law is steadily drawing to that of the U.S. law. It is an unavoidable phenomenon for the Korean commercial law to adopt more factors from the U.S. law. Further, the writer describes the progress, that has been made In the year 2008 in the field of the commercial law. And the writer emphasizes the followings: The process of establishment of business entity in Korea should be more simplified; An improvement in the area of corporate governance is also necessary; A clear understanding of the allotment of tasks between directors and executive officers is desirable, as the law will adopt the Executive Officer System; There is a need to reorganize and clarify the committee of inspection should be reorganized and clarified; New significance of the inspector functioning as the assessor of internal control system should be acknowledged; M&A should be more encouraged; More interest and concern towards MBO and EBO should be taken; Preemptive right (warrant) system should be introduced; It is necessary to diversify the stock types by introducing dual class stocks or golden shares. As a conclusion the writer points out that many business- related problems can ultimately be converted into the social responsibility of corporations. And also points out what international change has been made in the business environment; Business accounting reform is drawing near. It is necessary to provide for E-Discovery system, which was introduced by amendment of U.S. Federal Rules of Civil Procedure; It is desirable for the Korean enterprises to actively take part in Global Compact.
Abstract
The year 2008 celebrates the 60-year anniversary of the establishment of the Korean government. 2008 is also the 55th year since the Korean Commercial Code was put in force. Since the code was promulgated on January 20, 1962 and came into effect on January 1, 1963, rapid strides have been made in the studies of the commercial law. But still, as the economic environment of Korea and the world changes rapidly whereas the legislation hardly manages to keep up, there is a need to accelerate the process of building more advanced commercial law system. This article will provide an overview of significant changes of commercial law during last 55 years, and will try to define an ideal future prospect. The Corporate Law part of Korean Commercial Code has adopted several factors of U.S. Corporation Act from beginning, and has become even more similar to U.S. law due to recent amendment. Corporate Law of Korea came to adopt U.S. Corporation Act via Japanese law. The 1950 amendment of Japan's Corporate Law has been affected by the corporate statutes of Illinois. Thus, it is safe to assume that MBCA and Japan's Corporate Law share essentially the same groundwork. Korean Corporate Law, modeling after the Japanese Commercial Code that was amended in 1950, eventually is founded on the Illinois Business Corporation Act of 1933 as well. The recent trend in amendment of Korean Corporate Law is that the law is steadily drawing to that of the U.S. law. It is an unavoidable phenomenon for the Korean commercial law to adopt more factors from the U.S. law. Further, the writer describes the progress, that has been made In the year 2008 in the field of the commercial law. And the writer emphasizes the followings: The process of establishment of business entity in Korea should be more simplified; An improvement in the area of corporate governance is also necessary; A clear understanding of the allotment of tasks between directors and executive officers is desirable, as the law will adopt the Executive Officer System; There is a need to reorganize and clarify the committee of inspection should be reorganized and clarified; New significance of the inspector functioning as the assessor of internal control system should be acknowledged; M&A should be more encouraged; More interest and concern towards MBO and EBO should be taken; Preemptive right (warrant) system should be introduced; It is necessary to diversify the stock types by introducing dual class stocks or golden shares. As a conclusion the writer points out that many business- related problems can ultimately be converted into the social responsibility of corporations. And also points out what international change has been made in the business environment; Business accounting reform is drawing near. It is necessary to provide for E-Discovery system, which was introduced by amendment of U.S. Federal Rules of Civil Procedure; It is desirable for the Korean enterprises to actively take part in Global Compact.
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