상법의 해체와 재구성 - 회사법 제정을 중심으로

This paper aims to analyze the structural limitations of the current Korean Commercial Act (KCA) and the problems arising from them, and to propose the necessity and direction for dismantling it to establish an independent Company Act. Although the KCA has undergone numerous amendments since its enforcement in 1963, it has lost its systematic coherence and normative force amid rapid changes in the business environment and the enactment of various special laws. Nevertheless, in form, it has become a voluminous code that mixes commercial transaction law and corporate organization law. In this context, separating company law from the KCA and enacting it as a standalone statute is not merely a formal separation; it is a national imperative in terms of legal reform that reflects corporate realities and aligns with global standards. Based on this awareness, this paper examines in depth the approach of enacting company law as a standalone statute. From a comparative law perspective, among the top 20 GDP countries, only France, Italy, Turkey, and the Netherlands do not have separate company laws but incorporate them into their civil or commercial codes. In the case of Japan, which influenced the enactment of our KCA, the company chapter was separated from the Commercial Act to establish a Company Act in 2005. Therefore, enacting a standalone Company Act aligns with global legislative standards. Furthermore, the systematic issues of the current Commercial Act—such as (i) its excessive volume, (ii) the heterogeneity between organization law and transaction law, (iii) distortion of corporate relationships due to logics of transactional law, (iv) misunderstanding of the role of entrepreneurs due to the narrow concept of commerce, and (v) weakened normative force of the corporate chapter due to dispersed special law regulations—justify the establishment of a Company Act. When separating the corporate chapter from the KCA to enact company law, fundamental issues include addressing the concentration on Corporations and recognizing that the nature of a company is a composite body of diverse stakeholders, with an institutional purpose not solely of profit maximization but of promoting public welfare. Accordingly, company law should respect the principle of private autonomy while also incorporating mandatory provisions necessary for public welfare, reflecting its nature as economic legislation. The basic direction for enacting company law should be to expand corporate autonomy in formation and operation according to the principle of freedom and responsibility, while strictly imposing accountability for the outcomes. In a reality where professional management systems coexist with controlling shareholder structures, rather than imposing a single governance model, companies should consider adopting selective corporate governance appropriate to their circumstances. The scope of regulation under a new Company Act should include all five types of companies currently defined under the KCA, primarily covering unlisted companies while also encompassing listed companies. Special provisions under the Korean Capital Market Act applicable to listed companies should be transferred to the Company Act, and regulations on affiliates of corporate groups under the Korean Fair Trade Act should also be incorporated. Provisions from the general part of the Commercial Act may be adopted as-is or with partial modification. The form of the Company Act is another critical consideration. Under the overarching principle of constructing a systematic framework easily understood by the public, this paper proposes the following: 1) Include general provisions in the Company Act, primarily transferring the general provisions from the corporate chapter of the KCA, while relocating or modifying certain provisions as necessary. 2) Unlike the KCA, regulate Corporations first, and separately regulate corporate transformations, dissolution, and liquidation of all companies 3) Position general rules followed by special provisions, differing from the KCA. 4) Minimize the use of cross-references. 5) Establish provisions on corporate litigation separately. 6) Maintain penal provisions at the end of the statute, similar to the KCA. Finally, regarding governance of the Company Act, the Ministry of Justice should serve as the competent authority, establishing a Corporate Law Bureau and a standing Committee on Company Law Revision.