法人格無視의 法理를 再論함

Reconsidering on the doctrine of the disregard of the corporate entity Hyun Na This article focuses on the related subjects in the substantial law and proce-dural law about the doctrine of the disregard of the corporate entities , accepted and recognized by all the scholars in Korea and The Supreme Court of Korea . First, the legal characteristics of this doctrine are as following: i) Application of this doctrine does not result in the overall denial of existence of corporate entities; ii) This doctrine should be offered and applied for the benefits of an obligee; iii) The individual debt of the person behind the corporate veil is not trans-ferred from or committed by front corporate entities, but his own. Next, the characteristic of the legal relation between the front corporate and the person behind the corporate veil needs to be defined. The legal relation al-most corresponds to the not-pure joint and several liability ; it is similar to joint and several liability, but the front corporation and the person behind the corpo-rate veil are responsible independently for their own debts to the obligee. And if one of them discharges its or his liability, the obligation becomes extinct in the same extent, as a result, the other s liability becomes extinct in the same extent. In this legal relation, the obligee has the liberty to choose one or both as the obligor (defendant) between the front corporation and the man behind the veil. Now, having set forth the characteristics of the doctrine as a premise, the re-lated subjects on the civil procedure can be summarized as follows: i> Despite application of this doctrine, the general standing of the front cor-poration and its right to be a plaintiff or defendant in litigation are intact. ii) Despite application of this doctrine, in principle, the question as to who is the defendant at current suit is to be answered on the basis of the written allegations in the complaint. If the plaintiff wants to change the defendant, he should make a formal application to change the defendant; however, this way is allowed only exceptionally by courts in Korea, but most of the scholars have criticised this practice. iii) The obligee can bring a lawsuit against both the front corporation and the person behind the corporate veil, in this case, both defendants stand on even and ordinary status, not in the relation of selecting one alternative or ordering at examination and decision. iv) The force of the decision against the one of the front corporation or the person behind the veil cannot be binding upon the other. v) When the defendant s and the other s properties are commingled, confused, or can t be discriminated against for any reason, the executor might enter upon execution with the application of obligee. In this case, the other can bring a lawsuit against the obligee, and plead the right to the property. Above all, the noteworthy item is that the obligee can defend himself through this doctrine in this suit; so to speak, the obligee does not have to bring a new lawsuit, but can claim the application of this doctrine against the other in the suit brought by the other. The Korean Supreme Court has decided on the same standpoint in 1988, and Japanese Supreme Court followed the same point in 2005.