공익회사(Public Benefit Corporation) 법제화에 대한 소고

A Public Benefit Corporation(PBC) is a for-profit company that is intended to produce one or more public benefits in addition to the best interest of shareholders and the company. As interest in the corporate social responsibility has increased and the perception that companies should consider the interests of stakeholders as well has spread, legal grounds for PBC have been established in the United States and other countries. 41 States in the U.S. have PBC laws and the major ones are Model Benefit Corporation Regulation (MBCL), the Delaware General Corporation Law, and the Model Business Corporation Act proposed by the American Bar Association, which commonly state that a PBC shall have a purpose of creating public benefits and its directors shall consider the interests of stakeholders and public benefit in addition to the shareholder interests. The legislation on PBC is significant in that it serves as a basis for reducing the legal risk that directors will bear for violating their fiduciary duty when the company pursues social values, and it is argued that similar legislation needs to be introduced in Korea. Concerning PBC laws, however, issues such as excessive protection of directors’ discretion and insufficient accountability mechanisms, the possibility of greenwashing, and the difficulty to secure effective public interest-seeking activities have been raised. Regarding the legislation of a PBC law in Korea, there have been many for-profit companies already that have voluntarily pursued social values. When assessing director's liability, shareholder primacy is not a significant factor as it is in the U.S. And defining the pursuit of public benefit as the purpose of the company, and stipulating that directors are obligated to consider the interests of stakeholders cannot be an answer to the problems arising from ambiguous public interest concepts and decision-making guidelines for directors. Rather than introducing the PBS legislation, researches for establishing a practical incentive and effective governance model for the company's pursuit of social values will be needed.