Inquiry on Unexpected Development of Bestellung v. Anstellung in Korea

Abstract

The distinction between an organizational act and a contractual relationship among players has been well established in corporate law doctrines. The organizational Bestellung v. contractual Anstellung is one such example. Recently, the Korean Supreme Court reversed the legal doctrine related to Bestellung and Anstellung, and held that Anstellung is not required for a person appointed as director by shareholders meeting to have status of the company. This conclusion is arguably convincing, but surprisingly, the majority of Korean legal academia does not agree with it. This paper argues that such a majority view misunderstood the relationship between the Bestellung and Anstellung in German corporate law and, furthermore, between organizational act and contractual relationship in general. As a matter of fact, the German court or legal academia is very unlikely to have such a concern for this issue, since the supervisory board is bestowed with the power of conducting both Bestellung and Anstellung, which is not the case in Korea. In that sense, this recent court decision also shed light on the different legal structures of corporate management between Germany and Korea.