주식회사 설립에 관한 법적 고찰 -발기인, 발기인조합과 설립중 회사의 개념을 중심으로-

According to the common point of view, an incorporator was formally considered to the person that appended a seal or signature to the articles of corporation. In the point of view, even if engaging in establishment, the person who did not appended a seal or signature to the articles of corporation was not the incorporator, so was not liable. To the contrary, the person who appended a seal or signature to the articles of corporation was liable as the incorporator, even though the person did not actually engage in establishment. The concept of the incorporator in formality is relevant to that registration officers were granted only formal reviewing authority in registration of incorporation. The common point of view said that, in the case that the number of incorporators was more than two and the partnership contract aiming at establishment existed before preparation of the articles of corporation, the partnership of incorporators was set up. But the partnership of incorporators is not a partnership in Part 3(Claims), Civil Act. The Supreme Court said that the corporation being established which was an unincorporated association was set up when the incorporator undertook one or more shares, and the incorporator could prepare opening of business as the governing body. However, the point of view that preparation of the articles of corporation sets up corporation being established has the legal effect that the incorporator acts based on Commercial Law automatically succeed established corporation. And the preparing of opening business needs the business judgment. Therefore, this report suggests that the provision of Commercial Law that enables the representative director of corporation being established to prepare opening business should be established.