공정경제에서 상생의 전제로서 회사의 헌법상 권리에 대한 비판적 재검토 - 미국의 회사 본질에 관한 논의를 중심으로 -

Theories of corporations were developed centering around the discussion on corporate personality. The first theory of corporation in U.S. was the concession theory which had been prevalent by the early twentieth century. Also the aggregate theory appeared in the mid 19th century when the general corporate establishment laws began to be established. In the early twentieth century the real entity theory, affected by the german legal theories, was presented and became dominant before the nexus of contract theory, which took the economic principles into the legal theory in 1980s, replaced it. The essential issues of the theories on corporations in U.S. were ① whether the company was created artificially or formed naturally, and ② whether the company is a real entity or a legal fiction. By the early twentieth century the issue of the corporate personality was treated as a practical and significant matter because it could affect the direction of the regulation, but had not played any role in the debates surrounding principal economic policies. However with the advent of the nexus of contract theory, the theories of corporations received attention again, and the theories on corporate personality began to be re-discussed, with regard to the constitutional rights of the company, since the Citizens United v. FEC and Burwell v. Hobby Lobby Stores, Inc, which were understood as being affected by the nexus of contract theory. In Korea, the economic democracy has been an important contemporary agenda, which led the amendment of the Distribution Industry Development Act to oblige the big markets to close temporarily. In turn the constitutionality of this amendment was tried in the Supreme Court and in the Consitutional Court. The decisions of the two courts focused on the infringement of the constitutional right of occupation, which is basically a matter of whether a company is given consitutional rights and to what extent. Korean Constitutions do not provide articles on the constitutional right of a corporation. However the Constitutional Court held that a corporation is entitled to consitutional rights that an judicial person may have, irrespective of the nature of each company. However in order to implement the coexisting relationship among economic players and to realize the fair economic system, the business of individual economic players, especially big companies with large-scale human and capital resources, needs to be regulated, which might generate the controversy surrounding the restriction of the constitutional rights of the corporation. The theories of corporation might have implications on understanding of constitutional rights of a company and resolving the disputes thereof. On this ground this paper will overview the discussion on the theories of corporation in U.S. and will review and criticize Korean legal theories on the constitutional rights of a company.