법인격 부인의 역적용: 대법원 2021. 4. 15. 선고 2019다293449 판결을 글감으로

Asset partitioning is a basic principle for corporate organization: owner shielding (or limited liability theorem) protects shareholders’ personal assets from corporate creditors’ claims; entity shielding prohibits partial dissolution of a corporation by shareholders’ creditors. (Outsider) Reverse piercing is to remove entity shielding, benefiting controlling shareholder’s creditors – under reversing piercing scheme, controller’s creditors may extend their claims to corporate assets. Unlike traditional piercing jurisprudence, the applicability of reverse piercing has been controversial both in US and Korea. In May 2021, the Delaware chancery court explicitly adopted reverse piercing theory and allowed shareholder’s creditors to charge against corporate assets. The court imposed very strict requirements: on top of traditional piercing the veil requirements, the court should take into consideration (i) the other shareholders not responsible for the conduct of controllers, (ii) public conveniences, (iii) innocent third-party creditors of the corporation, etc. In Korea, reversing piercing has been discussed in the context of new entity incorporation with the assets of debt-ridden firm. What happens, if Z, a controller of ailing X company, siphoned X’s assets and established Y company, whose business portfolio and management was just the same as those in X company? The Korean Supreme Court viewed Y as alter ego of X and repeatedly allowed creditors in X to extend their claim to Y. While similar in that entity shielding is eliminated, the jurisprudence above is different from typical reverse piercing: the issue here was whether a corporation should be responsible for debts of ‘another identical corporation’ (not for debts of its controller). In 2021 Korea Supreme Court case (2019da293449), an individual set up a close corporation and transferred his business to it. A business creditor of the individual raised a lawsuit against the new corporation, arguing the individual abused the legal personality and the newly established corporation should be subject to reverse piercing. The Court sided with the creditor, pointing to that the individual did not receive fair compensation from the business transfer and the new corporation’s business portfolio and management was just the same as the individual’s prior business. This paper agrees with the conclusion that the corporation should be responsible for the debt of the individual in such a case. However, the logic should be different. The Supreme Court should explicitly adopt general reverse piercing theory which do not require fair compensation and the identical business elements. Rather, the Court need only to focus upon how to protect minority shareholders and creditors of the company subject to reverse piercing.