미국 재판관할법상의 법인격부인론

In the United States, jurisdictional veil-piercing theories appear to have developed as an application of the “evasion of the law” doctrine. The danger of both theories is that the threshold of veil-piercing for jurisdictional purposes may turn out to be meaningfully lower than in substantive law. It is partly because their limits have yet to be clarified. Another reason lies in the competition between “alter ego” theory and “agency” theory in federal district and appellate courts, which is prone to broaden jurisdictional limits. In this background, the United States Supreme Court intervened in Goodyear Dunlop Tires (2011) and Daimler (2014) to confirm that each theory is no exception to the “essentially at home” standard, the newly delineated criterion of general jurisdiction over corporations. On the one hand, this new development may significantly restrain the possibility of excessive reliance on the agency theory; on the other, the two recent decisions also work to highlight the proper role of the two theories in establishing general or special jurisdiction, as the case may be, in individual cases. Korean law of jurisdiction defines both general jurisdiction over legal persons and special jurisdiction at the place of business establishment in terms of an “office” or formal business establishment of the defendant. On the one hand, the courts may find the local subsidiary’s having “functioned” as the foreign parent corporation’s local office, either as the latter’s principal or minor office. This fact-finding does not necessarily involve jurisdictional veil-piercing, because the local subsidiary may perform an additional role of its parent’s branch office. On the other hand, Korean courts will also need to pierce the corporate veil in order to automatically impute local subsidiary’s contacts to its parent. In this context, both “alter ego” and “agency” theories may arguably be invoked in interpreting Korean law of international jurisdiction. Meanwhile, there is also a possibility that activity-based special jurisdiction may be legislatively introduced in Korea. If it becomes the law, jurisdictional veil-piercing may play an important function in finding such jurisdiction. While the critical question in the existing Korean law is whether the local subsidiary’s place of business also qualifies as that of its parent, the conditions for veil-piercing should not be overlooked. Korean courts tends to trigger veil-piercing logic without any further requirement than 100% ownership. This neglect of questioning the conditions for veil-piercing is regrettable. Korean courts should consider what should be the exact conditions for ignoring the formal corporate structure and examine them in concrete cases. Korean courts could, among others, refer to the American “alter ego” theory or “agency” theory for a possible guidance.