전후 일본의 재벌해체와 채무귀속 - 일제강제징용사건의 회사법적 문제에 관한 검토 -

Abstract

In 2012, the Supreme Court of Korea ordered two Japanese companies which were beneficiaries of the forced labor during the World War II to compensate for the damages incurred by the Korean victims of such forced labor. Among various legal issues of the decision, this article analyzes the following issue: assuming that the old companies were liable, are the new companies incorporated in 1950 through in-kind contributions by the old companies also liable?The author agrees with the Supreme Court in its conclusion that the victims may exercise their claims (which they originally had against the old companies) against the new companies. The logic that led to such conclusion is also generally acceptable. However, the court failed to provide any persuasive ground when it ruled that “the old companies and the new companies are substantially identical, and thus, they should be treated as the same companies from a legal perspective as well.” Poorly defined test at best, “substantially identical” test does not provide a meaningful guideline, and is inconsistent with the court’s past cases on the issue of “piercing the corporate veil” where the court stipulated detailed requirements for disregarding separate legal personality. Under the “substantially identical” test, many new companies incorporated by way of business transfer, corporate spin-off or in-kind contribution might be unduly exposed to the liability of the former companies. This article argues that, rather than disregarding the separate legal personality, the court should have reviewed whether the new companies have assumed the liabilities of the old companies owed to the victims. Under the well-established doctrine of Korean Supreme Court, when there is a business transfer or a in-kind contribution of a business, the transferee assumes the obligations of the transferor owed to the employees under the same terms and conditions as agreed by the employees and the transferor. This doctrine may be applicable to our case, leading to a conclusion that the new companies assume the liabilities of the old companies owed to the victims of the forced labor.