商法上 企業結合體의 形成 및 運營에 있어서 會社債權者 保護制度의 改善方向에 관한 考察

Traditional corporation law viewed each corporation as a separate juridical entity with its own rights and responsibilities, distinct from those of its shareholders. This view of the corporation as a separate juridical entity with its own rights and duties distinct from those of its shareholders could be called entity approach. The view of the corporation as a separate legal personality is reinforced by the separate doctrine of limited liability of shareholders for corporate debts. In the past, corporate groups did not hold important position in the korean economy. But, as the economy grows fast, corporate groups has become a dominant player in Korea. The divergence between the legal theory and economic realities increasingly creates new arbitrage opportunity to the controlling parties of corporate groups. When a corporate group which consists of separate member companies behave in the uniform direction as if they are a single corporate, it is required to treat the corporate group as an enterprise(‘enterprise approach'). At present, Korean Commercial Code does not contain special provisions aiming at protecting creditors of the companies which are members of corporate group. The corporate group creditors can only refer to general legal schemes to purport to protect creditors, such as self-dealing regulation, shadow director liabilities, veil piercing. Regrettably, these legal devices does not fit neatly for the creditors of corporate group. It is necessary to prepare additional and suitable legal regime for protecting corporate group creditors. Non- performance risk confronted by creditors in relation to the creation of corporate combination and its operation can be classified in two categories. The one is the risk that debtor corporation may become insolvent immediately after the formation of corporate combination. The other is the risk that debtor may have stronger incentive to behave opportunistically after corporate combination is made. In response to the former, it is in the best interest of creditors to take discharge or collateral in prior to the creation of corporate combination. In response to the latter, it is recommendable to make member companies of corporate group liable to the other member companies' creditors. Under this approach, a subsidiary's creditor can assert his right not only against parent company, but also against the other subsidiaries which are controlled by the same parent company. As the entire assets of corporate group will be subject to the rights of entire creditors of member companies, the controlling party of a corporate group may feel it less attractive to behave opportunistically.