유한책임회사에 관한 법적연구

Abstract

The Commercial Code in April, 2012 has newly introduced the Limited Liability Company(hereinafter, “LLC”) as a novelty structure of company in Korea in order to prepare for the legal basis that a company may counteract the rapidly changing business circumstances. The introduction of the new business form may be seen as a new paradigm of the structure of an enterprise. To meet the such demand many advanced nations have designed the new form of enterprise and introduced the foreign legislation examples. In accordance with the current complicated and diversified society, human asset/resource has become important as well as physical asset. Therefore, a type of company, which may effectively accommodate with such human asset/resources, would be required. Especially, even small cliquish companies had scarcely adopted the LLC so that reformation was required. According to the comparison analysis, a question, if Limited Liability Company may have an impact on Korean enterprises, which are prejudiced to corporation form, has been arisen. There is a legislation defect or no suitable factor have been introduced unlike American and Japanese cases, where limited liability company are already settled. This thesis focuses on the legal issues and points in dispute and their improvements for the new introduced LLC on the basis of the Limited Liability Company in United States and the Limited liability company in Japan. It would be same as the physical company but be set for the system for more flexible business organizations as the fact that it internally have some attribute of the human company. It internally recognizes the freedom of management between staffs but it externally requires the limited liability, and it is not responsible for the taxation on juridical persons rather it takes the responsibility of income tax of its employers. The core matters in legal disputable points in relation to the LLC are caused from first permission of autonomy by members and next second the limited legal liability as an element of the physical company Regarding autonomy by members, it would be a disputable point that the relevant provision(s) for the unlimited partnership is applied to the business management personal in the LLC without any amendment or adjustment. Regarding the limited legal liability, it would be doubt whether the capital system as a basis for the physical company can directly to the LLC, which may have the strong human elements. In addition, the LLC do not allow the employee or member’s labor investment and fiduciary contribution. In terms of this point, the Limited Liability Company in United States, which allow such investment and contribution LLC, is compared with the Limited liability company in Japan that do not allow them. While, regarding transfer of shares, there is no substantial difference between the business management personal and the non-business management personal, nevertheless the Commercial Code differently regulates them. It would be a point in dispute as well. We may consider the improvements to the legal issues and points in dispute of the LLC as follows. regarding autonomy by the members of company, the amended Commercial Code only say that if a business management personnel in the LLC damages the third party by his or her execution of operation, the company shall jointly be liable for the third party’s damages with such a business management personnel. addition of a provision applicable mutatis mutandis in order to impose a duty of care as the director of the corporation on the business management personnel in the LLC, considering the management organization within the physical company or stipulation of an separate provision to compel the business management personnel’s responsibility during his or her execution of operation, considering the fiduciary duty in United States. regarding application of a provision with respect to an unlimited partnership, I believe, it would not be reasonable that prohibition of comparative transaction and restraint of self-dealings as the member in an unlimited partnership is applied to the personnel or employee who do not participated in management or execution of operation in the event that the third person manage or operate the LLC in accordance with the Articles of the Company. I believe that prohibition of comparative transaction and restraint of self-dealings as the director of the corporation shall be applied to the only management personnel in the LLC to the exclusion of such an unreasonable application. In addition, the LLC may appoint the representative of management personals so that the provision in relation to the apparent representative director of the corporation shall be applied to the liability of company for the bona-fide third party when the personnel is not the true representative of the LLC but apparently establish or make the appearances of the representative. In relation to this issue, some argue that the system of the existing limited company does not need to subsist concurrently with the similar system-the LLC so that the Commercial Code should perish the system of existing limited company and operate the LLC such as the system of the Limited liability company under Japanese Company Laws or These two systems for the limited companies should be integrated. Other potential troubles of Limited Liability Company should not be approached by the introduction and removal of a company's system, rather it should be approached to establish the system that may fulfil a variety of demands for different company formations, and for the harmony of the system, each system should be relocated. I believe that, while maintaining the basic legal frame for already established system of limited companies and the LLC as a new system in order to vitalize the legal system for the limited companies, the legislation steps to make both systems integrated should be required through incremental legal amendments. Further study may be required since they are the issues that require careful analysis such issues.