회사 법인격의 형해화 및 남용 여부의 판단기준 - 대법원 2016. 4. 28. 선고 2015다13690 판결 -

Abstract

Korean courts have adopted the doctrine of disregarding the corporate legal entity, which is judicial decision of imposing personal liability on the controlling shareholder for debts of his or her completely controlled company, despite of the shareholder's limited liability. But, the supreme court appeared overly reluctant to apply the doctrine. In this case, judgments are remarkably divided between courts of appeal and supreme in relation to the judgment criteria for the issues as to whether or not a shareholder had complete control of the company and whether or not it's corporate entity was shelled or abused, all of which are required for disregarding corporate entity. In this comment, general theories on the lifting of corporate veil were briefly reviewed and the feasibility of the divided judgments between the courts were analyzed on the recognized facts, compared to the similar precedent cases and then some questions were raised about the supreme's dismissal decision made without clear legal reasons. In conclusion, the author opinioned that corporate's creditors should be more strongly protected in perspective of judicial policy against the widespread controlling shareholder's actual fraud to avoid the corporate liability for their claims. Finally the author proposed that it is desirable for the courts to actively acknowledge the doctrine of disregarding the corporate entity for securing the legal certainty and stability in case where the key factors for disregarding the entity are satisfied, even though some minor factors remain questionable.