商法上의 立法錯誤의 是正을 위한 연구⑵ - 會社編을 중심으로 -

Abstract

Korea’s limited experience in the legislative process in the early days of the country led to quite a few legislative errors in modern laws in Korea. Particularly,the author discusses the technical errors in the Commercial Act and analyzes the backgrounds of these errors. The author analyzed the errors in the Part I and II (the General Principle of Commercial Act and the Commercial Transaction) in his former article five years ago. In this article, the author discusses the Part III (Corporate Law). The technical errors in the process of codification can be resulted in from various factors. The author pays particular attention to the legislators' failure of consideration of the harmonization between the specified rules and its relevant principle rules. In 1958, the new Civil Act took place of the old Civil Act which was enforced during the Japanese occupation and ensuing years after Korea’s independence in 1945. On the other hand, the enactment of the new Commercial Act was completed in 1962 to take place of the old Commercial Act. One could imagine that the commercial law, as a special private law, would have been based on the general principles of the civil law. However, that was not necessarily the case. The legislators of the Commercial Act of 1962, not being fully aware of the changes in the civil law rules in 1958, failed to fully harmonize the Commercial Act with the new rules of the new Civil Act. Several provisions of the Commercial Act, therefore, came to be left not compatible with the civil law rules. In addition,there were several cases where even the newly established basic principles of the new Commercial Act were not adequately reflected on the individual provisions of the Act. And it should be noticed that, while many new individual rules of Japanese revised Commercial Act of 1950 were introduced into the new Commercial Act of 1962, the legislators failed to harmonize the new rules and the existing principles. After analyzing the erroneous provisions of the Commercial Act, the author then argues for the amendment of the Commercial Act to harmonize the provisions of the Commercial Act with the general rules of the Civil Act and Commercial Act.