법인격부인론에 관한 최근 판례의 비판적 검토 = A Critical Review of Recent Supreme Court Decisions on the Theory of Piercing the Corporate Veil

다국어 초록 (Multilingual Abstract)

The Commercial Act grants legal personality to companies (Article 169). However, when the company is not independent from its members, the legal personality of the company is not recognized in the problematic legal relationship between the company and a specific third party, but the company and its employees are identified, and the responsibility of the company is placed on the employees. This is called the theory of piercing the corporate veil. It was created and developed based on American precedents from the late 19th century to solve the evils of shareholders abusing limited liability in corporations. However, controversy has recently emerged regarding the reverse application of the theory of piercing the corporate veil, which holds an employee accountable to the company. Accordingly, focusing on three recent Supreme Court Decisions regarding the reverse application of the theory of piercing the corporate veil, we looked for a reasonable solution by reviewing the application requirements of the theory of piercing the corporate veil, theories and precedents related to its reverse application, and foreign trends.
First, with regard to the requirements for applying the theory of piercing the corporate veil, 1) it is natural that the company has no independent existence or its own will, and that the controlling shareholder must exercise complete control, such as running the company as if it were a personal business, and there is no particular problem for other shareholders. Since this should not occur, it is necessary to demand more strict control over the company, such as a legally one-person company or a de facto one-person company. 2) In the case of insufficient capital, which is discussed along with the requirement that the company does not have the ability to repay, it is not reasonable to add it as an objective requirement of the theory of piercing the corporate veil, and it is reasonable to only consider it as an additional consideration. 3) If the subjective factor of intent to abuse corporate personality is added as a requirement for application of the theory of piercing the corporate veil, it may actually reduce the effectiveness of the theory of piercing the corporate veil due to the difficulty in proving it, so it is reasonable to believe that the subjective requirement is not necessary.
Next, in order to ensure legal stability, reverse application of the theory of piercing the corporate veil is undesirable, and therefore, in principle, it should not be recognized. The theory of piercing the corporate veil itself is not based on positive law, contains the risk of jeopardizing the principle of limited liability of shareholders, which is a mandatory regulation, and in fact results in the refund of investment to shareholders, which is the primary protection of corporate property. This is because it is very unreasonable to even acknowledge the reverse application of the commercial Act, as the subject may even infringe on the commercial law's idea of being a creditor. However, this is an extremely exceptional case in which there is no special problem even if the reverse application of the theory of piercing the corporate veil is acknowledged because the company is comprised only of the controlling shareholder and those who share economic interests with him. Additionally, this is an exception when there is no effective protection measure other than reverse application. Therefore, the theory of piercing the corporate veil must be acknowledged.

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