2008 회사법판례의 전개와 주요쟁점

Abstract

There are not so many cases on the corporate law cases sentenced by supreme court last year. Belows are the summary and the arrangement of the cases that are worth to be reviewed. (1) The necessary factors to be applied 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 (2) Who is the real share underwriter when the underwriter undertook shares with the other name. Because only the name borrower has the mind to be shareholders, the case see the borrower the real shareholder. But, in order to use the shareholder right he should change the name in the shareholder's list. (3) In small private corporate, the transfer of shares could be restricted ① by agreement between the shareholders or ② by the chart like to get approval of the board of directors. In that case, First, that agreement is valid if the restrictions to the transfer are partial. Second, even though shareholders do not get the approval, it is valid the effect of transfer between transferor and transferee. (4) When he breached obligation to pay reasonable attention to audit by the severe negligence, auditor of corporate are responsible to the third party. When the management embellished annual account and it was adroitly forged, even though the auditor didn't find out that forgery, he is not regarded as to have the severe negligence. (5) The effect time of the redemption of shares by the shareholder agreement is different to the effect time of the acquisition of claims to the repayment by the redemption of shares. The redemption of shares is effective after finishing the procedure of the diminishing the capital and losing effect of shares. The other hand, the acquisition of claims to the repayment by the redemption of shares is effective after the agreement of shareholders to the redemption of shares and finishing the procedure of the diminishing the capital. (6) The merger of corporate can be invalid if the ratio of shares to be issued to the merged corporate is severely unfair. Weather it is fair or unfair could be tested by the similarity of amount between the payment and receive. The case see it fair when the price of corporate is reasonable in the light of complex value of the corporate. (7) The two parts of the concerned in the split-up of corporate are collectively responsible to debt of the corporate occurred before the split-up. Among the debt belongs those that, though the debt occurred before the effective time of the split-up, not started the pay period until split-up.