會社의 營利性에 대한 批判的 考察
A Study of the Term of Profit-Making Activities of Company
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The Korean Commercial Act Art. 169 says “The term company used in this Act means a corporation incorporated for the purpose of engaging in commercial activities and any other profit-making activities. Our dominant theory argues that ‘profit-making activities’ means not only engaging in commercial activities but also distributing the profits to the shareholders. This paper criticizes the theory and argues that the the term ‘profit-making’does not include distributing the profits to the shareholders. The major legal debate is about corporate social responsibility and it is whether corporate managers should consider not only shareholders in making their decisions but also other stakeholders affected by those decisions. Namely, underlying legal analysis on corporate social responsibility is a major debate about the nature of the corporation. It would be noticeable that stakeholder theory has become increasingly popular in the United States. This article addresses those questions by analysing the arguments supporting shareholder primacy theory and by assessing whether these arguments are strong enough and provide sufficient justification for the theory. The analysis is undertaken from a current legal interpretation perspective. By interpretation of the current Korean corporate law, directors do not have to serve to maximize shareholders’ wealth. Even more, unlike the United States law, the Korean law does not require directors to owe fiduciary duties to shareholders. Rather, shareholder primacy thesis seems to be contradictory to the concept of corporate entity and its limited liability. Overall, we cannot conclude that shareholder primacy thesis overrules stakeholder primacy by relying on a legal interpretation itself. This paper concludes that shareholder primacy is flawless and is not substantial enough to provide comprehensive and integrated fundamentals for issues around a corporation. Shareholder primacy theory does not guide a corporate law into the right pass.
Abstract
The Korean Commercial Act Art. 169 says “The term company used in this Act means a corporation incorporated for the purpose of engaging in commercial activities and any other profit-making activities. Our dominant theory argues that ‘profit-making activities’ means not only engaging in commercial activities but also distributing the profits to the shareholders. This paper criticizes the theory and argues that the the term ‘profit-making’does not include distributing the profits to the shareholders. The major legal debate is about corporate social responsibility and it is whether corporate managers should consider not only shareholders in making their decisions but also other stakeholders affected by those decisions. Namely, underlying legal analysis on corporate social responsibility is a major debate about the nature of the corporation. It would be noticeable that stakeholder theory has become increasingly popular in the United States. This article addresses those questions by analysing the arguments supporting shareholder primacy theory and by assessing whether these arguments are strong enough and provide sufficient justification for the theory. The analysis is undertaken from a current legal interpretation perspective. By interpretation of the current Korean corporate law, directors do not have to serve to maximize shareholders’ wealth. Even more, unlike the United States law, the Korean law does not require directors to owe fiduciary duties to shareholders. Rather, shareholder primacy thesis seems to be contradictory to the concept of corporate entity and its limited liability. Overall, we cannot conclude that shareholder primacy thesis overrules stakeholder primacy by relying on a legal interpretation itself. This paper concludes that shareholder primacy is flawless and is not substantial enough to provide comprehensive and integrated fundamentals for issues around a corporation. Shareholder primacy theory does not guide a corporate law into the right pass.
참고문헌 (38)
- 김건식, "회사법상 충실의무법리의 재검토, In 21세기 한국상사법학의 과제와 전망" (2002), 심당송상현선생화갑기념논문집간행위원회
- 김진우, "營利法人과 非營利法人의 區別에 관한 法比較的 考察", 비교사법, 10(3), pp.99~130 (2003), 한국비교사법학회
- 박세일, "법경제학" (2000), 박영사
- 서규석, "상법 제401조와 기업의 사회적 책임, In 상사법의 현대적 과제" (1984), 전영사
- 손진화, "상법강의" (2011), 신조사
- 송덕수, "민법강의(상)" (2009), 박영사
- 송옥렬, "상법강의" (2012), 홍문사
- 안택식, "기업의 사회적 책임의 실현방향", 상사법연구, 9(1) (2000), 한국상사법학회
- 이철송, "회사법" (2013), 박영사
- 이태로, "대규모회사의 본질과 사회적 의무", 서울대학교 Fides, 18(2) (1973), 서울대학교 법학연구소
- 장덕조, "保險法學의 動向과 課題", 상사법연구, 30(3), pp.47~95 (2011), 한국상사법학회
- 정찬형, "상법강의(상)(제15판)" (2012), 박영사
- 최기원, "신회사법론" (2013), 박영사
- 최준선, "기업의 사회적책임론", 성균관법학, 17(3), pp.471~506 (2005), 법학연구소
- 최준선, "회사법" (2013), 삼지원
- 한철, "주식회사의 사회적 책임", 상사법연구, 7 (1989), 한국상사법학회
- Amiram Grill, "Corporate Governance as Social Responsibility", Berkeley J. Int’l L, 26, pp.452~ (2008)
- C. A. Harwell Wells, "The Cycles of Corporate Social Responsibility: An Historical Retrospective for the Twenty-First Century", U. Kan. L. Rev, 51, pp.77~ (2002)
- Einer Elhauge, "Sacrificing Corporate Profits in the Public Interest", N.Y.U. L. Rev, 80, pp.733~ (2005)
- Frank Partnoy, "Adding Derivatives to the Corporate Law Mix", Ga. L. Rev, 34, pp.599~ (2000)
- G. Mitu Gulati, "Connected Contracts", UCLA L. Rev, 47, pp.887~ (2000)
- Henry T.C. Hu, "Abolition of the Corporate Duty to Creditors", COLUM. L. REV, 107, pp.1321~ (2007)
- Jill E. Fisch, "Measuring Efficiency In Corporate Law: The Role Of Shareholder Primacy", J. Corp. L, 3, pp.637~ (2006)
- John Armour, "Shareholder Primacy and the Trajectory of UK Corporate Governance", British J. of Industrial Relations, 41, pp.531~ (2003)
- John C. Coates IV, "Note, State Takeover Statutes and Corporate Theory: The Revival of an Old Debate", N.Y.U. L. Rev, 64, pp.806~ (1989)
- Julian Velasco, "Shareholder Ownership and Primacy", University of Illinois Law Review, 2010, pp.897~ (2010)
- Kent Greenfield, "Proposition: Saving the World Corporate Law", Emory L.J, 57, pp.94~ (2008)
- Lisa M Fairfax, "Doing Well While Doing Good: Reassing the Scoppe of Directors' Fiduciary Obligations in for Profit Corporations with Non-Shareholder Beneficiaries", Wash. & Lee L. Rev, 59, pp.409~ (2002)
- Lisa M. Fairfax, "The Rhetoric of Corporate Law: The Impact of Stakeholder Rhetoric On Corporate Norms", J. Corp. L, 31, pp.675~ (2006)
- Margaret M. Blair, "Specific Investment: Explaining Anomalies in Corporate Law", J. CORP. L, 31, pp.719~ (2006)
- Marshall M. Magaro, "Two Birds, One Stone: Achieving Corporate Social Responsibility Through The Shareholder Primacy Norm", Ind. L.J, 85, pp.1149~ (2010)
- Milton Friedman, "Capitalism and Freedom", pp.133~ (1962), The University of Chicago Press
- Reuven S. Avi-Yonah, "The Cyclical Transformations of the Corporate Form: A Historical Perspective on Corporate Social Responsibility", Del. J. Corp. L, 30, pp.767~ (2005)
- Robert A. Ragazzo, "Unifying the Law of Hostile Takeovers: Bridging the Unocal", Revlon Gap, 1993, pp.35, 989~
- Robert J. Rhee, "Fiduciary Exemption For Public Necessity: Shareholder Profit, Public Good, And The Hobbon's Choice During A National Crisis", George Mason Law Review, 17, pp.661~ (2010)
- Stephen M. Bainbridge, "In Defense of the Shareholder Wealth Maximization Norm: A Reply to Professor Green", Wash. & Lee L. Rev, 50, pp.1423~ (1993)
- Stephen M. Bainbridge, "The Business Judgment Rule as Abstention Doctrine", VAND. L. REV, 57, pp.83~ (2004)
- Thomas Donaldson, "“Ethical Blowback”: The Missing Piece in the Corporate Governance Puzzle--The Risks to a Company Which Fails to Understand and Respect Its Social Contract", Corp. Governance, 7, pp.534~ (2007)