사실상의 회사 이론에 관한 연구 - 미국의 판례와 제정법을 중심으로 -

Abstract

This article deals with the "de facto corporation" and promoter's liability focusing on the trend of court decisions and statutes in the U.S. A de jure corporation is recognized as having a corporate existence for all purposes, even as against a direct attack by the state. In the absence of substantial compliance with incorporation requirements, a court may nevertheless treat a defectively organized corporation as a "de facto corporation" and recognize it as having continuity of life, limited liability, and other corporate attributes. Except in a direct action by the state, a de facto corporation is treated as though it were de jure corporation. The recognition of de facto existence promotes the security of business transaction. By simplifying the mechanics of incorporation, modern corporation statutes have reduced the number of defective incorporation and thereby the amount of litigation. Most modern corporation acts contain provisions either dictate the moment in the incorporation process that a corporation comes into existence by providing that the filing of the articles of incorporation or the issuance of a certificate of incorporation by the secretary of state is either presumptive evidence or conclusive evidence that all conditions precedent to incorporation have been met, or they specify the consequences of particular defects in the organization process. MBCA §2.04 provides: "All persons purporting to act as or on behalf of a corporation, knowing there was no incorporation under this Act, are jointly and severally liable for all liabilities created while so acting". In jurisdictions with this provision, the purely or largely passive investor may escape liability for the obligations of an entity whose proper birth has not come about. Persons may presume to do business as a corporation without having gone far enough in their incorporation attempt to acquire a de facto standing. Nevertheless, under some circumstances and for some purposes, courts sometimes hold either the purported corporation or persons contracting with it estopped to deny its corporate status. The corporation then is often referred to as a "corporation by estoppel". The application of the so-called estoppel doctrine does not mean that the irregular corporation has acquired a corporate status generally and for all purposes. Where a defective corporation brings suit against the other party to a contract to enforce the contract, courts often say that the party who has contracted with the supposed corporation is estopped from denying its existence. A person contracting with an association that pretends to be a corporation may sue the associates as a corporation, however, the principle of estoppel will prevent the associates from setting up as a defense the falsity of their own representation of corporateness. Article 190 of Korean Commercial Code(KCC) provides that "A judgment affirming the nullification or revocation of the incorporation shall be effective against any third party: Provided that it shall not affect the rights and duties which have arisen between any member of the corporation and any third party person before the judgment becomes final and conclusive." This provision applies mutatis mutandis to the stock company(Article 328 of KCC), which is recognized as a de facto corporation.