회사법에 있어서 강행법규 체제의 역할과 한계
The Role and Limitation of the Mandatory Structure in Corporation - A Comparative Study Based on American Corporate Law -
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The Role and Limitation of the Mandatory Structure in Corporation - A Comparative Study Based on American Corporate Law - Park, Sei-Hwa Most of Korean commentators see Korean corporate law as primarily composed of mandatory rules that the shareholders themselves can not waive or modify. Conversely, American commentators, to whom is called "contractaians" as the dominant legal view, see American corporate law as primarily composed of waivable "default rules", which the law provides as a model form contract in order to reduce the transaction costs of contracting. This article has three parts. Part Ⅰ describes basic concepts for explaining the change of the mandatory structure in Korean corporate law. In part 2, I begin with the observation that most American law and economics scholars embrace a model of business organizations known as the "nexus of contracts theory of the firm". In thinking about the role that mandatory rules might play in a contractarian framework, I explain the justifications for mandatory corporate law, introducing five hypotheses : invertor protection, uncertainty, public good, innovation, opportunistic amendment. In part 3, I offer the mandatory-enabling balance in Korean corporate law. I attempt to explain the justification and limitation of extending enabling system. This article concludes that the present system of mandatory rules in Korean corporate law should be changed, but we never forget four limitation elements of changing system: the third party protection, power allocating, assurance against opportunistic articles amendment, disclosure rules.
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