채무면탈을 위한 회사의 설립과 법인격부인론의 적용 요건

Abstract

orporations are separated from their shareholders and a corporations shareholder's liability is usually limited to his or her capital investment in the corporation, and the shareholder is normally not individually liable to the corporation. Courts have deployed the equitable doctrine of piercing the corporate veil whenever they have believed it necessary to impose liabilities despite of limited liability. But the requirements for piercing the corporate veil is so various and vague, one can't not expect when a court permits to disregard corporate entity. The Supreme Court has decided that when a existing corporation established a corporation to avoid its contract claims, the creditor of the existing corporation should prove the same identities of both corporations and the intention to avoid contract claims to disregard the entity of the new corporation. The Supreme Court has considered the important requirements to prove the same identities of both corporations and the intend to avoid the contract claims are the fact that the same person controls both corporations and there is no siphoning of asset of the existing corporation. Some commentators argue that the creditors need not prove the subjective requirement, like the intention to avoid contract claims of the existing corporations. Since regardless of the intention to avoid contract claims the creditors should be protected by piercing the corporate veil. But I think that It is permitted to liquidate an overgeared corporation and establish a new corporation that has the same identities of the liquidated one due to the limited liability. Thus creditors should prove the intention to avoid contract claims. The Supreme Court has decided that the time when a new corporation is established should considered as an fact of the intention to avoid contract claims. But the Supreme Court also permitted to pierce the corporate veil when a corporate uses other corporation that is already existing to avoid its contract claims. So the time when a new corporation established need not considered as an important fact to decide the intention to avoid contract claims.