나의 상법학 이해 30년 - 입법 및 판례와 관련한 연구를 중심으로 -

Abstract

My studies on commercial law which have greatly influenced legislations(Korean Commercial Code) and Korean Supreme Court Judgements for amendments, are as followings. 1. Finance lease, franchise and factoring were newly regulated in 1995 revised Korean Commercial Code article 46(basic commercial transactions) no.19∼no.21, and the rights and obligations etc. of the parties concerned with such transactions were newly regulated in 2010 revised Korean Commercial Code articles 168-2∼168-12. 2. The liability of public entertainment service man for the goods given into his keeping by the guests was changed from no-fault liability to fault liability in 2010 revised Korean Commercial Code article 152 paragraph 1. 3. The association(Korean “SADAN”) in the definition of a company was deleted in 2011 revised Korean Commercial Code article 169. 4. The doctrine of the disregard of the corporate entity was adopted clearly for the first time by Korean Supreme Court Judgement 97 DA 21604(Jan. 19, 2001). 5. 2011 Korean Commercial Code adopted executive officer system for the first time. Namely, Korean Commercial Code article 408-2 paragraph 1 enables companies to appoint executive officers by their choices, and those companies which appointed executive officers(will be termed “executive officer company” hereinafter) cannot appoint representative director. Executive officer company is a form of company which divides executive agency(executive officer) and supervisory agency(board of directors). After 1997 Financial Crisis in Korea, legislators made large listed companies with total asset 2 trillion or more Korean won(hereinafter referred to as “large listed companies”) appoint majority of outside (independent) directors and at least three outside directors compulsorily. Since there was no enactment about executive officers separated from supervisory board of directors before 2011 revised Korean Commercial Code, the board of directors failed to perform the role of supervisor. Furthermore, the board of directors with majority of outside directors which participated in decision-making of the company reduced the efficiency of management badly. In other words, participation of board of directors with majority of outside directors in decision-making produced mass “actual executive officers” for the efficiency of management, and those actual executive officers(widely called as “un-registered officers”) were out of laws. To prevent this side effect, the legislators should have enacted executive officers before enhancing board of directors' supervisory role by majority of outside directors. It is expected that companies with those actual executive officers should change (all or part of) them into executive officers(in other words, choose executive officer company) in 2011 revised Korean Commercial Code articles 408-2∼408-9. If such large listed companies do not choose executive officer companies voluntarily, it is required that the re-amendment of Korean Commercial Code makes them choose executive officer companies compulsorily for the transparent management by enhancing board of director's supervisory role. 6. Electronic securities(electronic registration of shares etc.) were introduced in 2011 revised Korean Commercial Code article 356-2 etc. 7. Electronic voting system in the shareholders' meeting was introduced in 2009 revised Korean Commercial Code article 368-4. 8. In case that the default of duty to notify has not affected the occurrence of the insured risks, whether the insurer is able to rescind his insurance contract or not has been sincerely discussed. While past Supreme Court Judgement 68 DA 2082(Feb. 18, 1969) etc. decided that the insurer could not rescind his insurance contract, on the contrary of above mentioned judgements recent Korean Supreme Court Judgement 2010 DA 25353(July 22, 2010) decided that the insurer could rescind his insurance contract. 9. A statement of the place where the bill, promissory note or check is issued, is absolutely required by Korean Bills Act article 1 no.7, article 75 no.6, Checks Act article 1 no.5. A bill of exchange, promissory note or check which does not mention the place of its issuance is deemed to have been drawn(made) in the place mentioned beside the name of the drawer(maker) by Korean Bills Act article 2 no.3, article 76 no.3, Checks Act article 2 no.3. In case that there is no statement of the issuance place(including the place mentioned beside the name of the drawer or maker, hereinafter the same shall apply) on the domestic bill, promissory note or check, whether such bill, promissory note or check is valid or invalid has been sincerely discussed. While past Korean Supreme Court Judgement 67 DA 1471(Sep. 5, 1967) etc. decided such bill, promissory note or check was invalid, recent Korean Supreme Court Judgements 95 DA 36466(Apr. 23, 1998) and 99 DA 23383(Aug. 19, 1999) repealed clearly past Judgements by the collegiate judgement of all Justices and decided that such bill, promissory note or check was valid for the protection of the holder of such bill, promissory note or check.