프랑스 회사제도 변천사 - 회사이익 및 주주이익을 중심으로

France, with its tradition of Colbertism, implemented strong dirigiste policy. However, since the 1980s, under pressure from globalization and market liberalization, the traditional theory of enterprise institution was replaced by the functional theory, halting the trend toward corporate socialization and reducing the concept of the company to a technical tool or a legal structure supporting enterprise. However, the 2019 PACTE Act, which amended the Civil Code and Commercial Code to allow a company’s articles of incorporation to define its raison d'être, is expected to open new avenues. Directors can pursue diverse social interests according to its raison d'être without worrying about liability arising from a breach of duty. Considering France’s unique corporate culture, where management and government form a close cooperative relationship, the government may expect to revive the previous practice of pursuing policy objectives through companies, and management may benefit from the entrenchment effect. Here, the concept of corporate interests, according to French jurisprudence, not only differs from shareholder interests but also signifies the company’s own independent interests, transcending the sum of shareholder interests. Applying the French theoretical discussion to Korea’s case law, which has made judgments similar to the French doctrine emphasizing corporate interests, two possible scenarios emerge. Korean courts may decide to maintain the concept of corporate interests to secure the managements autonomy, but it would lack legitimacy for the judges to make such a policy decision against the will of the legislature and president, which are driving the revision of the corporate law from shareholder-centric perspective, and against the public desire for market revitalization. Moreover, it would undermine market transparency and credibility because it is difficult to provide a reasonable explanation, acceptable by modern standards, regarding the concrete content of corporate interests. It is high time for Korean courts to abandon the concept of corporate interests transcending shareholder interests from the functional theory perspective and to converge towards shareholder primacy. In such a case, it will no longer be possible to justify infringements on shareholder interests under the guise of corporate interests. Furthermore, only if the interest of shareholder or stakeholder would not be harmed, the excessive criminal prosecution of management under the pretext of protecting corporate interests should be avoided as well.