기업환경의 변화와 상사법의 해결과제

Since the adoption of the Commercial Act, corporations in Korea that have developed the national economy exist in a variety of forms from small businesses to large conglomerates competing in the global market. The amount and the velocity of transactions have increased enormously. In addition, as science and technology have developed, transaction styles have changed from analogue to digital pattern. As the national economy has developed, a large number of corporate groups have been formed. As the legal foundation and interests between shareholders and creditors have dynamically changed, a main challenge in relation to affiliated companies is to adjust and regulate issues of corporate groups within the context of the Commercial Act. In particular, a recent corporate governance issue is that a shareholder holding only a fraction of shares can exercise control over the entire corporate group via internal ownership among affiliated companies. In this respect, corporate governance scholars actively discuss how to reduce dominant shareholders' excessive influence over corporations and how to prevent dominant shareholders from avoiding business and legal responsibility. In addition, external factors that corporations face constantly change, and the market globalization facilitates capital flows among jurisdictions. Accordingly, another major issue to corporations is how to defend them from the potential takeover attempts. In the changing business environments, in order to maintain and develop corporations as the main axis of the market economy with capitalism, it is of significance that the Commercial Act, as the foundation law, properly regulates organizations and activities of corporations. To do so, policy-making should be proceeded with empirical data and objective indices in a way that can achieve business efficiency and general justice. In addition, policy-making through enactments should be considered while two goals -stability and efficiency- are harmonized within the scope of the principle of private autonomy. Particularly regarding regulations on corporations, a cautious approach should be maintained. During the course of the policy-making process or enactments, it is recommended to avoid groundless, hypothetical approaches and biases arising from hasty generalization. Most of all, enactments should be made based on balanced views on efficiency/inefficiency and policy effects/side-effects. Moreover, in order to avoid biases in political stance and interest groups' influence, enactments should be proceeded in a neutral and reasonable manner. This Article first sketches changes of internal and external environments that corporations recently face. Then, this Article reviews four tasks in application of the Commercial Act: the relevance of the concept of "merchant"; the possible enactment of corporate group law; major issues to improve corporate governance; and the adoption of takeover defense mechanisms. Subsequently, this Article provides my opinions on the direction of enactments to resolve the aforementioned tasks and issues.