회사법의 과거와 현재 그리고 미래

Abstract

The first modern Company Law to be enforced in Korea was “Part Ⅱ Company” of the Japanese Commercial Code, which was adopted by the “Chosun Civil Ordinance” in 1912 during the Japanese forced occupation period. The Japanese Commercial Code was enacted and enforced in 1899 in imitation of the General German Commercial Code (ADHGB) of 1861. This Commercial Code continued to be used in Korea during the japanese Forced occupation period and even after the liberation from japanese occupation in 1945 until the end of 1962, before the Korean Commercial Code was enforced. After the establishment of the Korean government in 1948, a law compilation committee was established to work on drafting the Korean Commercial Code. However, due to the Korean War and the continuing political instability, the intended Code did not come to fruition for more than 10 years. Meanwhile, according to the “Old Laws Clearance Project” of the military government that came to power in a military coup on May 16, 1961, the Korean Commercial Code was promulgated as Law No. 1000 on January 20, 1962, and came into effect on January 1, 1963. The Korean Commercial Code was almost similar to the Japanese Commercial Code that had been used in Korea in its composition and content. However, the positions of the “Part II Commercial Activities” and the “Part III Company” of the Korean Commercial Code were changed. The “Part III Company” of the Korean Commercial Code is characterized by being based on the German commercial law and accepting various systems under the American corporate law. The important point of the American corporate law systems accepted by Korean Company Law was the introduction of a board of directors system, which simultaneously strengthens the powers of the board of directors and reduces the powers of shareholders' meetings and auditors. As countermeasures to the reduction of the power of the general shareholders' meeting, the right of injunction and the derivative suit system were established to protect shareholders. In addition to the adoption of the authorized capital system, the principle of full payment of shares was applied to ensure the capital sufficiency. The Korean Commercial Code of 1962 has been amended more than 20 times since its enforcement. The “Part III Company” of the Commercial Code was the most frequently amended, with 14 revisions made by the end of December 2020. As a result of the continuous work on amendments, the content of Korean company law has largely approached global standards. In particular, several revisions have been made since the late 1990s to conform to global standards, most of which have been found to accept the American corporate law system. However, in the composition of the code, the Korean company law still retains the form of one part of the Korean Commercial Code. It is important to note that this Commercial Code is composed of six parts, but it is difficult to find a common legal principle on which the provisions of six parts must be included in a single commercial code. Also in consideration of the characteristics of the company law as a law that governs an organization, and in order to resolve conflicts and inconsistencies between company provisions in the Commercial Code and between the Commercial Code and other company-related special laws, it is desirable to separate “Part Ⅲ company” regulations in the Korean Commercial Code and enact a single Company Act. Such enactment is consistent with the legislative trend of corporate law in developed countries such as the United States, the United Kingdom, Germany, and Japan. In the case of enacting the Company Act, it is desirable to have a form of integrated law that regulates all companies. From the user's perspective, it would be easy to understand and use to define the most commonly used stock company among the types of companies.