주식회사에서의 경영의 공정성과 효율성 ―상법상의 몇몇 규정에 대한 검토―

Commercial law provides fairness and efficiency as an important ideology behind the management of corporations. ‘Fairness’ means the so-called balance and proportionality to the parties in transactions and procedures. 'Efficiency' originally means the ratio of output to input. As a result, some provisions have been found to be problematic in fairness as the commercial law emphasizes efficiency as opposed to provisions that put a lot of emphasis on efficiency. These requirements in this paper have been examined in detail. First of all, there are provisions on matters regarding qualified incorporation, representatives in lawsuits between corporation and directors, and creditor protection procedures in case of a company merger. To sum up, first, if there are provisions on matters regarding qualified incorporation, the commercial law allows the third parties to intervene in incorporation, such as inspectors or appraisers, and the court's interference, which is bound to incur transaction costs. Second, it is not effective for an statutory auditor to represent the corporation in lawsuits between corporation an directors. Third, the commercial law is inefficient because it requires individual to be notified on the future event even if there is no loss of creditors in the merger. Next, provisions on the restrictions on share transfer by the articles of association, the chairperson’s right to keep maintenance of order at general meetings of shareholders, and the preemptive right granted to a person who is to make an investment contribution in kind put more emphasis on the efficiency of management rather than the fairness. The It shall summarize the reasons why these provisions are assessed to be rigid in efficiency. First, if the company refuses to approve the transfer of shares restricted by the articles of incorporation and the shareholder forces the corporation to purchase the shares and he recover the capital invested, it would undermine the fairness of the company's management. Second, it is no different from preventing shareholders from exercising voting rights by the chairperson who expels shareholders by invoking the right to keep maintenance of order. Third, in the case of contribution in kind, it will be difficult to secure fairness in corporate management when the decision of the Supreme Court rules that existing shareholders' preemptive right can be excluded.