회사법판례의 변화와 전망

Abstract

The volumes of the cases on corporate law are accumulating in Korea, so it is pointed the importance of the cases as related to the actual society. We can learn from the cases the flows of changes of corporate law, and they work sometime as standard in analyzing the new legal systems. There were many changes in cases on corporate law. Especially, after IMF, it was induced many American systems in our corporate law. So, that trends was reflected to the corporate cases. At this notes, 30 topics were selected among corporate cases which have many changes in position, reflects the changes in legislation, and have opposite position to the scholar's theory. Among the 30 topics, I can point two representative cases which reflect the flows of changes in corporation. First, the changes of cases on the piercing the corporate veil. To apply the theory of the piercing the corporate veil, it is needed ① absence of formalities of corporate existence ② perpetration of fraud by means of the corporate vehicles. In order to test weather it is absence of formalities of corporate existence, important factors are ① inadequate capitalization ② personal use of corporate funds. Second, we can point the cases on the The business judgment rule. The business judgment rule is admitted to encourage the inventiveness of the director. it was developed in case law of the America. In our country it is also needed to encourage director's inventiveness. So, it is notable that our supreme court take affirmative position on that theory and give standard to apply the business judgment rule. In order to apply that rule the management by the director should not be illegal. In order to apply the business judgement rule the court demand three standard. First, it should be done full informed with respect to the subject. Second, rationally believes that the business judgement is in the best interests of the corporation. Third, it should be done with the care that an ordinarily prudent person would reasonably be expected to exercise in a like position and under similar circumstances.