새로운 기업형태의 도입에 관한 상법개정안에 대한 소고 = A Legal Study on the Commercial Code Revision Bill regarding Adoption of New Business Association Types

다국어 초록 (Multilingual Abstract)

【Abstract】

A Legal Study on the Commercial Code Revision Bill regarding Adoption of New Business Association Types


Kim, Jae Moon

On Oct. 4, 2006, the Ministry of Justice made a legislation announcement that it would adopt Limited Partnership's and Limited Liability Company's as new Korean business association types in its Commercial Act Revision Bill, and with minor changes, now the Revision Bill is pending in the National Assembly..
This article briefly mentions the historical and theoretical background of the adoption of these new business association types first and then analyzes the new Korean LP's and LLC's as prescribed in the Revision Bill.
This Revision Bill has changed to adopt the U.S. LP's instead of LLP's, differently from what was mentioned initially, which I think is not a good choice. Probably it was too difficult for them to be free from the traditional thought that those who perform the association's business themselves should be individually liable and to adopt LLP's. I hesitate to say the bill as a well made choice to have removed the legal personality from the existing limited partnership company (Hapjahoesa) and adopt a LP as a partnership format in that in the near future the existing limited partnership company(Hapjahoesa) would be taxed only once like a partnership if the so-called, American partnership taxation system is introduced in Korea and then it will be little different from the existing limited partnership company (Hapjahoesa).
And I am unsatisfied with the LLC legislation in that it still has adopted the traditional capital maintenance principle and that it applies to LLC's provisions on the general partnership company(Hapmyunghoesa), which are premised on the direct management by the partners themselves, as far as possible even in situations LLC's are managed indirectly by third party managers instead of members themselves.

참고문헌 (Reference)

• 1 조지현, "회사의 무한책임사원자격" 25 (25): 2006
• 2 조인호, "혁신주도형 경제 진입을 위한 중소기업의 육성전략과 정책과제: 한국에서 폐쇄적인 중소기업에 적합한 회사형태의 모색:Limited Liability Company와 주식회사로서의 폐쇄회사를 중심으로" KDI 연구보고서 2005
• 3 안경봉, "합자조합, 유한책임회사의 도입과 법적 문제점" 25 (25): 2007
• 4 곽윤직, "채권각론" 박영사 2007
• 5 김재문, "주식회사의 이익배당에 관한 법적 고찰" 14 : 1995
• 6 윤현석, "새로운 기업유형의 도입에 관한 연구" 23 (23): 2004
• 7 한국증권법학회, "상법개정연구보고서" 한국증권법학회 2006
• 8 곽윤직, "민법주해, 제16권" 박영사 2006
• 9 法制審議會, "會社法制の現代化に關する要綱"
• 10 中央經濟社編, "新「會社法」詳解"
• 11 山村延彦, "合同会社ＬＬＣの法律と登記" 日本法令 2005
• 12 Anthony Mancuso, "orm your Own Limited Liability Company, 2nd ed.," Nolo Press 1998
• 13 Wortman, "Unlocking Lock-in: Limited Liability Companies and the Key to Underutilization of Close Corporation Statutes" (70) : 1362-,
• 14 Whittaker, "The law of Limited Liability Partnerships, Jordans," 2004
• 15 Keatinge, "The Limited Liability Company: A Study of the Emerging Entity" (47) : 375-,
• 16 Hamilton, "Registered Limited Liability Partnerships: Present at the Birth (Nearly)" (66) : 1065-, 1995
• 17 Bromberg, "Limited Liability Partnerships, The Revised Uniform Partnership Act, and The Uniform Limited Partnership Act" Aspen 2005
• 18 Alberta Law Reform Institute(ALRI), "Limited Liability Partnerships" (77) : 1999
• 19 Ribstein, "Limited Liability Companies," Thompson West 2005
• 20 Starr, "Limited Liability Companies" 1995
• 21 Weidenbruch, "Federal Income Taxation of Corporations and Shareholders, 3rd. ed." West 1989
• 22 Shade, "Business Structures" Thomson West 2003