會社의 營利性에 대한 批判的 考察

The Korean Commercial Act Art. 169 says “The term company used in this Act means a corporation incorporated for the purpose of engaging in commercial activities and any other profit-making activities. Our dominant theory argues that ‘profit-making activities’ means not only engaging in commercial activities but also distributing the profits to the shareholders. This paper criticizes the theory and argues that the the term ‘profit-making’does not include distributing the profits to the shareholders. The major legal debate is about corporate social responsibility and it is whether corporate managers should consider not only shareholders in making their decisions but also other stakeholders affected by those decisions. Namely, underlying legal analysis on corporate social responsibility is a major debate about the nature of the corporation. It would be noticeable that stakeholder theory has become increasingly popular in the United States. This article addresses those questions by analysing the arguments supporting shareholder primacy theory and by assessing whether these arguments are strong enough and provide sufficient justification for the theory. The analysis is undertaken from a current legal interpretation perspective. By interpretation of the current Korean corporate law, directors do not have to serve to maximize shareholders’ wealth. Even more, unlike the United States law, the Korean law does not require directors to owe fiduciary duties to shareholders. Rather, shareholder primacy thesis seems to be contradictory to the concept of corporate entity and its limited liability. Overall, we cannot conclude that shareholder primacy thesis overrules stakeholder primacy by relying on a legal interpretation itself. This paper concludes that shareholder primacy is flawless and is not substantial enough to provide comprehensive and integrated fundamentals for issues around a corporation. Shareholder primacy theory does not guide a corporate law into the right pass.