회사법의 역사와 한국경제의 미래를 위한 회사법의 방향

Abstract

There is a general consensus that modern corporate law originated from four sources, which are the corporate and commercial laws of the UK, the USA, Germany and France. All of them are the fruit of a capitalist economy, but further categorization can lead to a classification of two systems - the external governance structure of the Anglo-Saxons and the internal governance structure of the Continent. While the former promotes financing through an open stock market, the latter achieves financing mostly through investment banks. The former has been focused on the maximization of shareholder value based on economic liberalism, but the latter has been understood to be more interested in stakeholder value. However, in contemporary times, the two systems have been somewhat mixed, making it difficult to maintain an exclusively binary categorization system. In the era of the global economy in particular, understanding of another country’s legal system is essential in setting the right direction for corporate law in one’s own country. While Korea has a rich history of over 5000 years, the history of its corporate law is very short. Since the commercial laws of Japan were translated all of a sudden, the process of evolution has been skipped and there is no tradition in this field to speak of. A completed form of law had been transplanted from the beginning. Korean commercial law can be seen as having common roots with German commercial law. Corporate law in Korea, however, has more common roots with the corporate law of the Anglo-Saxon world. In recent years, Korean corporate law has increasingly become similar to American corporate law. Of the four major origins of corporate law, this researcher focused on surveying the history of British corporate law, general corporate law in the State of Delaware, and German law on corporate stocks, discussed the concept of corporate social responsibility and looked at where Korean corporate stands today amidst the evolution taking place in corporate laws around the world. The paper then concludes with presenting a future direction for Korean corporate law. The first purpose of corporate law is not regulation. Corporate law must ensure that no matter what the size, a firm can make the most of the corporate system to organize and operate its business. The purpose of corporate law is to promote efficient operations of the business and increased adjustability to change. This is a concept that is included in one of the basic ideas underlying Korean corporate law, which is the ‘reinforcement of maintenance’ (e.g., formation of the basis on which a corporation can exist, a guarantee for the corporation to exist as a going concern, and prevention of the dissolution of the corporation). The goal of corporate law is to increase efficiency. Douglas North, a 1993 Nobel laureate, emphasized in 1992that “Institution does matter.” Acemoglu, as well as Johnson & Robinson noted that “The reason there is a gap between rich countries and poor countries can be trace to the difference in economic policy and systems.” Policies and systems are conceived by the law. According to the World Economic Forum’s Global Competitiveness Index, Korea was ranked 62nd in 2012, 74th in 2013 and 82nd in 2014 for its comprehensive score on policies on systems with a focus on trust in politicians, the independence of the justice department, regulatory pressures, efficiency of its legal system, transparency in decision-making, efficacy of corporate boards, and protection of minority shareholder rights. This ranking is among the lowest out of all 154 countries that were assessed, and among the OECD member countries, ranks Korea among the lowest 30% bracket. A variety of regulations are only worsening the situation. What is more worrisome is the unofficial 'system' taking root, such as anti-corporate sentiments among the public. This researcher believes that academics in corporate law can play an important role in such a situation to improve both the official and unofficial systems concerning corporations in Korea.