법인격의 남용과 역적용에 관한 판례평석 - 대상판결 : 대법원 2010. 1. 28. 선고 2009다73400 판결-

In the subject case discussed in this paper, it was ruled that the controller, as well as the corporation, is responsible for the action of the corporation when juristic person is ossified and when it is overused. According to the Supreme Court, whether the controller abused the corporation system must be judged separately after taking all the circumstances into consideration, such as the extent of ossification of juristic person and the awareness or trust of the opposite party, at the time when the act of abuse, such as exemption from liability, was committed. This paper analyzes the relevant case from the viewpoint of the extent of ossification of legal personality and the awareness and trust of the opposite party. Furthermore, according to the Supreme Court decision, the fact that the third party 2 transferred her assets to the already-established accused foundation for the purpose of exemption from liability cannot be considered by itself an act of abuse that denies legal personality. But the Supreme Court ruled that legal personality can be denied because corporation system is abused when a company establishes a practically identical company for the purpose of exemption from liability. These two cases have in common the question of whether or not legal personality was denied when the assets were transferred to the personality for the purpose of exemption from liability. The purpose of an incorporated foundation is to provide an independent legal personality to a collection of assets, which are supplied with a definite goal, and to let it achieve its own goal, independent from the providers of the asset. It is necessary for an incorporated foundation to protect its assets in order to achieve its objective. However, when we consider the principle of equal treatment, it is also necessary to protect the creditors by denying the legal personality when the juristic person system is abused. Since there is a conflict in this case between a need to protect the foundation asset and a need to protect the controller’s creditors, it is reasonable to decide whether to deny legal personality by comparing and weighing these two factors. In this case, the accused foundation acquired real estate without cost and gained a profit, and a plaintiff could not collect his debt after the transfer of the real estate and suffered a loss. Since the third party 2, who controls the accused foundation, was able to exert influence over the accused foundation and manage its assets by transferring the real estate, it did not reimburse the creditors and transferred the real estate to the accused foundation for no cost. When the controller of a non-profit foundation causes a violation of the principle of equal treatment by abusing legal personality, it is unreasonable for the controller to be able to enjoy the profit that resulted from the abuse of legal personality and this must be corrected. In this case, it is more important to protect the creditor who suffered a loss when his debt was not reimbursed, than to protect the accused foundation who paid nothing for the transfer of real estate. Therefore, as applying reversely the principle of denying legal personality, the accused foundation should bear the personal debt of the third party 2, who transferred the assets for the purpose of exemption from liability.