일본의 LLC 입법과 미국의 LLC 입법의 비교

The LLC is a very popular closely held business structure in the U.S. because it is recognized as the most favorable business structure to owners as it enables the owners to directly manage the business and yet to enjoy the limited liability privilege and to receive the pass through taxation (single taxation). In response to this trend in the U.S., Japan has adopted “goudougaishya”, the so-called Japanese LLC into the new Company Act, that has been in force since 2006. This paper’s aim is to give useful hints in introducing the LLC system into the Korean Commercial code by providing comparison of the Japanese LLC legislation with the U.S. legislation. This paper does not mention the LLC draft in the revision bill of the Korean Commercial Code because it was already dealt with in another paper of mine. The big differences between the Japanese legislation and that of the U.S. are as follows: First, the U.S. legislation gives flexibility in management structure in that it enables to choose between direct management by the owners and indirect management by the third party managers. Second, most states of the U.S. have not adopted the capital maintenance principle in the past and have instead taken insolvency or bankruptcy as tests in distribution. Third, in transferring member's rights, the U.S. LLC distinguishes between financial rights and management rights and allows financial rights alone to be transferred separately. The break-through of the LLC, when compared with the traditional business structures, is that the owners enjoy the limited liability privilege even though they can manage the business themselves. The traditional concept is that, if the owners directly manage the business themselves as in partnership or “hapmyunghoisa”, then they are personally liable for the business and, if the business is run by the third party managers as in corporation, then they are not personally liable for the business debt and are liable only for the agreed contribution to the business structure. Further more, I think it is imminent that a proprietorship comes out where the owner is liable up to the business assets contributed and not with personal assets provided there is a public notice of limited liability and a complete separation of business assets and individual assets. In case of one man LLC’s, I think it already serves this function.