법인격 부인론의 역적용에 대한 소고 - 대법원 2021. 4. 15. 선고 2019다293449 판결을 계기로 -

Abstract

“Reverse piercing of the corporate veil” means the holding a corporation liable for the obligation of the person behind the veil. For example, if a person behind the veil transfers property to a company for the purpose of concealing or escaping assets, the company would be responsible for the debt of the person behind the veil. Academics acknowledged the “piercing of the corporate veil”, but some were passive about reverse piercing. It was also not clear whether judicial cases would be considered to have accepted the reverse application of corporate denial theory. and also explained whether our case would be considered to have accepted reverse piercing. The Korean Supreme Court decision on April. 15(2019da29344920) is a case in which an individual, a debtor, established a new company and transferred his business assets to a new company. the Supreme Court ruled that an individual creditor could claim the debt from the new company. It has been clearly confirmed that the corporation can be responsible for the debt of the person behind it, at least in certain cases, such as the purpose of evading debt. The conclusion that can be seen as reverse piercing appears and is expected to emerge in the future. Therefore, future discussions on the reverse application of the theory need to be advanced by carefully reviewing and developing the legal principles of the theory. This article is an attempt to examine the legal basis of reverse piercing and to make it more concrete, sharing the position with the majority of those who affirm the theory. The dominant position of the person behind the veil shall be judged on a more relaxed basis than on the “shelling of the corporate legal entity” case. It should not be denied, especially on the grounds that there is a third shareholder in a formal manner. Given that assets of existing companies have been unfairly transferred to new companies, it is difficult to say that the interests of creditors or other shareholders of new companies are absolutely superior to those of existing companies. Therefore, it is difficult to agree with the view that reverse piercing is recognized only for single-person companies or family companies.