「대주식회사법」의 구축과 기업지배구조 - 일본 신회사법을 토대로 하여 -

Abstract

Regulations upon large open corporations should be adopted into the system of the Corporate Law, In Korea, though, they have been, as temporary expeditious measures in order to settle problems of those time and to cope with social changes, adopted into various special laws such as the Securities Exchange Act and the External Audits Law as well as various rules derived from them. It can be said that the dual regulatory practices have severely confused corporate interests, and the compulsory provisions in the Corporate Law have been either abrogated or violated by such special laws and their abusive revisions. As a result of those, the Corporate Law has been losing the original functions of the basic corporate laws and eventually jeopardizing its unconstitutionality. Considering these problems, there is a general agreement among scholars and in business world in Korea that corporate regulations have come to the point where those special laws and rules as expedient measures lost their impacts and there have been debates on the necessity to legislate for the separation between large and small corporations. Among the system of companies that are regulated by the Corporate Law, stock companies count more than 95% in korea, but the number of listed companies are only about 730 companies. And so, most of stock companies are not large nor open companies, and they are just operated by family members. From the point of comparative legal system, this present situation is quite abnormal, producing various problems in many areas. If small and closed companies are regulated uniformly and continuously by strict and complex regulations aimed at large and open companies, they might consciously or unconsciously try to completely evade regulations by the corporate laws. As the Corporate Law are not able to reflect the realities of corporate world,their authority as the basic laws of corporate world, will be reduced,if not completely lost. With the above understanding, this paper argues that there are differences between large and open corporations and small and closed corporations in terms of the economic functions in their operations as well as their nature, and it is an imperative to separate regulatory laws into ones which are directed towards large and open corporations and ones which are directed towards small and closed corporations. Further, this paper try to construct ‘the Large Corporations Act’ as special law, and finally present specific details for new corporate governance system in large and open corporations.