회사법의 방향-취임사에 갈음하기 위하여

Professor Kent Greenfield of the Boston College Law School recently has insisted in his paper “Proposition: Saving the World with Corporate Law”that the corporation law can save the world. He argues that the stakeholder protection should be incorporated in the corporate governance system and the stakeholders should be able to nominate their representatives as directors of corporations. This means that the directors of corporations should be responsible not only to shareholders but also to stakeholders. He insists that the traditional shareholder-oriented corporate law should be reorganized into a model of stakeholder governance. On the other hand, Professor Gordon Smith of the University of Wisconsin Law School rebutted the claim of Professor Greenfield in his thesis “Response: The Dystopian Potential of Corporate Law”. Professor Gordon Smith says that corporation law cannot eradicate poverty, cannot clean the air and water and cannot solve the labour problems. He claims that the goal of corporate governance is to maximize the total social wealth and this end can be achieved more easily by shareholder primacy policy. This writer critically discusses both observations by examining the history of corporation law and concludes that the corporate law cannot ‘save the world’. Even though enhancing the corporate social responsibility (CSR) or sustainability of business corporation is a worldwide trend, CSR cannot be mandated by law. Korea did not explicitly enact German co-determination system. However, according to an entrenched custom, Korean companies nominate their own employees as directors, and this is a significant discrepancy from the American shareholder capitalism; Korea, unlike the United States, has already fundamentally adopted stakeholder capitalism. This writer agrees with Professor Smith in that an utopia cannot be built through revision of corporation law and even such an attempt may be unrealistic -due to the globalization of economic activities, companies will simply move to developing countries or underdeveloped countries in order to escape from the application of these laws.