유한책임회사에 있어서 채권자보호를 위한 규제
The Regulation for Creditor Protection in Korea Limited Liability Company
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It is enough to say that one of imperative issues in the limited liability company(LLC) is the loose regulation for creditor protection, basically caused by the LLC’s fundamental structure characterizing by its member’s limited liability and self-governance which can be pointed out as the strong points of LLC system. Examining the creditor protection system of the several jurisdiction, this article have made some suggestions for producing additional measures to redress some possible drawbacks of the LLC’s creditor protection mechanism in the Commercial Law of Korea. Main issues dealt with in this article are the matters of liability of member or non-member who execute the LLC business to a third party, of appointing part-time auditor, of disclosure system, and of piercing the LLC veil etc. The humble conclusion of this article is summarized hereunder. First, regarding the matter of liability to third persons, if the member or non-member who execute the LLC business have neglected to perform their duties wilfully or by gross negligence, they shall be jointly and severally liable for damages to third person. Compared with the regulation of Japan LLC, the liability of business executive members to third persons is not a sort of overburden but reasonable especially for careful managing and creditor protecting . Second, regarding the matter of appointing part-time auditor, as like a limited liability company may have one or more auditors in accordance with the article of incorporation, it is necessary to stipulate that appointing part-time auditor in order to meet the demand for auditing of LLC. Third, regarding the matter of disclosure system, currently member or non-member who execute the LLC business shall prepare and keep the financial statements at each period for the settlement of accounts, and the creditor and member of the company may request for inspection or copying of such document. However, they don’t be required legally to give public notice of the balance sheet. There is an opposite view, but taking disclosure system of LLC could be meaningful for providing the creditors of LLC variable access way. Lastly, regarding the matter of piercing the LLC veil, even though it is not the matter of laws and regulations, regulating LLC system abuse by the court from the piercing the LLC veil can perform a realistic and effective role in protecting creditor of LLC taking the lack of LLC system experience into consideration. This article hope that all the main features, member’s limited liability, operating flexibility and partnership’s pass-through tax treatment should be fulfilled in Korea LLC law and could respond to their expected demands for new business entity in this changing economic situation.
Abstract
It is enough to say that one of imperative issues in the limited liability company(LLC) is the loose regulation for creditor protection, basically caused by the LLC’s fundamental structure characterizing by its member’s limited liability and self-governance which can be pointed out as the strong points of LLC system. Examining the creditor protection system of the several jurisdiction, this article have made some suggestions for producing additional measures to redress some possible drawbacks of the LLC’s creditor protection mechanism in the Commercial Law of Korea. Main issues dealt with in this article are the matters of liability of member or non-member who execute the LLC business to a third party, of appointing part-time auditor, of disclosure system, and of piercing the LLC veil etc. The humble conclusion of this article is summarized hereunder. First, regarding the matter of liability to third persons, if the member or non-member who execute the LLC business have neglected to perform their duties wilfully or by gross negligence, they shall be jointly and severally liable for damages to third person. Compared with the regulation of Japan LLC, the liability of business executive members to third persons is not a sort of overburden but reasonable especially for careful managing and creditor protecting . Second, regarding the matter of appointing part-time auditor, as like a limited liability company may have one or more auditors in accordance with the article of incorporation, it is necessary to stipulate that appointing part-time auditor in order to meet the demand for auditing of LLC. Third, regarding the matter of disclosure system, currently member or non-member who execute the LLC business shall prepare and keep the financial statements at each period for the settlement of accounts, and the creditor and member of the company may request for inspection or copying of such document. However, they don’t be required legally to give public notice of the balance sheet. There is an opposite view, but taking disclosure system of LLC could be meaningful for providing the creditors of LLC variable access way. Lastly, regarding the matter of piercing the LLC veil, even though it is not the matter of laws and regulations, regulating LLC system abuse by the court from the piercing the LLC veil can perform a realistic and effective role in protecting creditor of LLC taking the lack of LLC system experience into consideration. This article hope that all the main features, member’s limited liability, operating flexibility and partnership’s pass-through tax treatment should be fulfilled in Korea LLC law and could respond to their expected demands for new business entity in this changing economic situation.
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