A Study On Legal Theory Of Fiduciary Duty Among Shareholders

A revision was recently made to reflect fiduciary of duty among shareholders in the Chinese New Law of Corporation. But I think that some critical theological challenges to give it a legal effect in the real life have still remained unsolved. In particular, a traditional law of corporation, according to the Continental law, has not recognized a certain relation of law among shareholders based on the nature of corporations as associations, which, in turn, has become a big theological obstacle in acknowledging fiduciary of duty among shareholders. Thus, the paper will conduct a study on theological bases and methods on how fiduciary of duty among shareholders can be recognized in the theological system of both the Korean and Chinese laws of corporation. To this, the pare will mainly examine the theological outcome of the German law of corporation based chiefly on the German case of Linotype which acknowledged fiduciary of duty among shareholders, and then it will be applied to the laws of corporation of the two countries. Following are the gist of theological meaning in the German case of Linotype:In view of methodological aspect, first, the decision has made use of methodology which approves normative practices in the legal reality rather than methodology which has its base on legal positivism. Second, in the absent of any legal norm of positive law, the court has acknowledged shareholders'fiduciary of duty by means of formation of law. Especially in the decision of Linotype, it is needed to note that the conclusion has been obtained on the basis of real structure of concrete corporations which might carry no meaning at all in the conventional methodology. In this case, typology has been premised as legal methodology which belongs to monism of being and ought-ness. Unlike traditional methodology, according to this premise, the real structure of a corporation has nothing to do with outside problem of the law of corporation, but it has its meaning in the law of corporation. Consequently, the real structure of a corporation, in the processof the application of corporation law, it is possible to make such decisions which consider the real structure of a corporation beyond the corporation's legal form.Next, in the aspect of the law of corporation the decision identifies the two concepts of legal form of corporation and real structure, i.e., real type of corporation, and then it applies the principle of limited liability companies which acknowledged shareholders'fiduciary of duty based on the real type of corporation. Such practice of law application has been justified by the theory of special relationship of M. Lutter. In order to make use of the outcome of German law in the law of corporation of Korea and China, I believe the essential task lies at whether the concepts of corporation form and corporation type can be separated in our law of corporation. Since both type theory and Lutter's above mentioned theory belong to the realm of legal methodology and basic theory of the law of corporation, there will be no significant difficulties in the application of the two nations'law of corporation. In this regard, I have reviewed theological bases and methodologies of the world leading countries, recognizing shareholders'fiduciary of duty in Chapter 2. In Chapter 3, I have discussed type theory as a methodology, and the development process of German law of corporation based on the theory. And finally, in Chapter 4, I have also discussed the possibility of establishing the core concept to acknowledge shareholders'fiduciary of duty in the law of corporation of the two countries.I sincerely hope that my study contribute in the progress of theory of the law of corporation for the two nations, and encourage positive response from the court.