상법상 외국회사 규정의 몇 가지 문제점: 2011년개정의 분석과 비판을 겸하여

Abstract

Provisions relating to the foreign corporations in the Korean CommercialCode were amended in 2011. This paper identifies important issues that maypractically arise with respect to these provisions and tries to presentreasonable ways to interpret and apply these provisions. Also, this paperpoints out a few mistakes in the amendment and proposes ways toovercome such problems. More specifically, this paper focuses on three major issues. First, theArticle 614 should be further revised to require registration with the courteven when the foreign corporation does not establish a branch in Koreaand simply designates its representatives (at least one of whom must residein Korea). Such proposal may appear to increase the burden of foreigncorporations, but in fact it will remove the undue obligation of a foreigncorporation under the Article 616 to be registered with the court (whichregistration is currently only possible when it establishes a branch office) inorder to be “engaged in continuing transactions.”Second, a foreign corporation registered with the court in Korea isrequired to disclose its balance sheet or its equivalent under the new Article616-2. This paper argues that such obligations cannot require more than itslaw of incorporation requires. Thus, if a standalone balance sheet (asopposed to a consolidated one) is not required under its law ofincorporation, the company does not need to prepare and disclose it inKorea (and it is sufficient to disclose a consolidated balance sheet), althoughKorean law so requires to the Korean companies. Third, this paper criticizes the overreaching pseudo-foreign corporationdoctrine adopted by the Article 617 and proposes abolishment or a verylimited application of this provision. Parties who entered into transactionswith such pseudo-foreign corporation should not be harmed by disregardingdue incorporation of such companies.