이익공여금지규정을 둘러싼 제 문제－ 최근 일본에서의 논의를 중심으로 －

The purpose of this paper is to examine, with the developments of recent Japanese judicial precedents and theories, a series of processes on how the giving property benefits regarding the exercise of rights of shareholders has been extended and reestablished in Japan. The tyranny of Sokaiya has occurred mainly in business environments in Korea and Japan. Countries which have legislated the giving property benefits to the shareholders are rarely found in the world except Korea and Japan. These days, the activities of Sokaiya and special shareholders similar to Sokaiya have almost disappeared due to the burst of the bubble economy and the long-term recession, criticisms of unsavory events of companies which are strikingly revealed, and companies’ improved awareness in compliance with law. On the other hand, Article 120 is required to be newly interpreted due to unexpected situations in relationships between management and hostile shareholders to management that could not be forecast at the enactment of the law, such as the emergence of speaking-out shareholders, the increases in Shareholder Derivative Litigation, and so on. While Article 120 and Article 970 of the Japanese Corporate Law were revised in 1981 in order to take measures against Sokaiya, it can be said that nowadays, Article 120 functions widely as a measure to ensure the soundness of the companies beyond the original motivation of the legislation against Sokaiya, with the repetitive legal wrangles over the application of Article 120. In other words, the trend of recent precedents is that, when Article 120 of the Japanese Corporate Law is applied, it is widely applied beyond the limits to the legislative intent of banning giving property benefits to Sokaiya, and, for a regulatory purpose, it is emphasized to secure soundness of business operations and fairness in the dispute over company controlling rights rather than to sever giving property benefits to Sokaiya. Thus, Article 120 of the Japanese Company Law has undergone a functional change to regulating the management which has strained relations with shareholders on the dispute of company management, contrary to the initial purpose of taking measures against Sokaiya.