Issues of International Corporate Law

本研究的主要成果包括：第一，探讨国际公司法研究的历史发展与现状。实体法问题和冲突法问题多年来没有得到明确的认定，某些规范性规则的域外适用问题也被错误地分析。第二，分析了国际公司法的基本理论。其中包括：（1）什么是公司的管辖法律（所在地理论或公司组建理论）;（2）哪些问题受公司法律管辖;（3）不论国际私法的运作如何，适用哪些规则（例如，证券法规的域外适用）。对公司法的适用范围进行了界定，这是因为有必要对公司事务进行统一规范，并从这一角度重新审视了现有的论点。第三，将国际母子公司关系作为基础理论的一种特殊适用进行了仔细的考察。特别提请注意母公司对子公司行使权力和子公司可能管理不善所产生的责任。同时，本文还分析了包括母公司股东派生诉讼（两级派生诉讼）在内的股东派生责任的法律适用问题。第四，对新公司法中可能存在的问题进行了分析。新法典试图将所有问题作为实体法问题来解决，但这种做法是错误的，已经出现了一些令人遗憾的结果。最后，以英文介绍了日本国际公司法的现状和未来议程。

This research project includes the following results.First, the historical developments and present status of the international corporate law studies were explored. Issues of substantive law and of conflict of laws were not clearly identified for many years and the problems of extra-territorial application of certain regulatory rules were also incorrectly analyzed.Second, the basic theory of international corporate law was analyzed. It includes among others (1) what is the governing law of the corporation (seat theory or incorporation theory), (2) which problems are governed by the law of the corporation and (3) what rules are applied irrespective of the operation of private international law (e.g., extra-territorial application of securities regulations). The scope of application of the law of the corporation was defined because of the necessary uniform regulation of the corporate affaires and existing arguments were re-examined from this view point.Third, the international parent-subsidiary relationships were carefully examined as a special application to basic theory. Special attentions were drawn on the liability arising out of the exercise of the parent's power over the subsidiaries and of the possible mismanagements in subsidiaries. The analysis also covers applicable law of the enforcing such liability including derivative action by parent's shareholders (two tier derivative actions).Forth, the potential problems in the new Corporate Code were examined. It was cautioned that the new Code tries to solve all issues as a matter of substantive law but the approach is misguided and several unfortunate results are already found.Finally, the current status and future agenda of Japanese international corporate law were introduced for the foreign readers in English.