2007년 상법 개정 시안 중 최저자본금제도 폐지에 관한 소고

• 영문명: What are the Issues to Abolishment of the Minimum Capital Provision upon the 2007 Government Amendment Draft of Korean Commercial code - On the perspective of Legal Capital System in Korean corporation
• 발행기관: 전남대학교 법학연구소
• 저자명: 이상주(LEE, Sangjoo)
• 간행물 정보: 『법학논총』제28권 제2호, 93~120쪽, 전체 28쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2008.12.30

영문 초록

The 2007 Government Amendment Draft of Korean Commercial code suggests that the minimum capital provision with regard to establishment of a corporation (§329 ①) shall be abolished, which requests promoters to furnish \50,000,000. It was intended to protect the creditors of corporation and deter a overflow of establishment of corporations. Therefore, whether it be still needed or not depends on the fact that whether it be effective towards the goals. Unfortunately, this kind of reasoning has not yet been scrutinized with the perspective of legal capital system of Korean commercial law, which is covering the whole version of that law and could be regarded as the ground for the minimum capital provision. Legal capital system is a basic and core rule provided for the goal of the protection of the creditors as well, and it runs through it. The point is that this legal capital system, which has been recognized as a coercive rule, is now being challenged by the recent skepticism globally. When it comes to US, they seems not resort to the capital system the protection of the creditors any more, has no systems like minimum capital provision neither. Secondly, Japan has abolished the minimum capital provision, ¥10,000,000, at the amendment of new corporation law in 2005. They came to think it is needless to stick to the system for the purpose of the protection of the creditors, and better to find other way more effective. Lastly, the EU nations, based on the civil law system, still got the regulations stem from the legal capital system. However, law makers and scholars proposed a idea of ineffectiveness of the role of the system in order for the protection of the creditors of corporations. Some of them even suggest the annulment of the system and the minimum capital provision as well. Theoretically and empirically the minimum capital provision, based on the legal capital system, seems to have lost the principal role as it has not been effective to protect the risk of corporations, offer information to the creditors, protect the creditors with a contract nor non-contract neither. On top of it, it plays no significant role to deter the overflowing of the establishment of corporations. In conclusion, the proposal of revision, on the theme hereupon, seems appropriate considering the global trends, and the theoretical and empirical perspectives.

목차

Ⅰ. 서설

Ⅱ. 최저자본금 제도와 채권자보호

Ⅲ. 최저자본금 제도와 주식회사의 남설 방지

Ⅳ. 결어

키워드

2007년 정부의 상법(회사법) 개정안 최저자본금 제도 법정자본제도 채권자 보호 주식회사의 남설 2007 Government Amendment Draft of Korean Commercial Code minimum capital provision legal capital system creditor protection overflow of corporations