Issues of International Corporate Law

本课题的研究成果主要包括以下几个方面：首先，对国际公司法研究的历史发展和现状进行了梳理。实体法问题和法律冲突问题多年来没有得到明确的识别，某些监管规则的域外适用问题也没有得到正确的分析。其次，分析了国际公司法的基本理论。除其他外，它包括(1)什么是公司的管辖法律(所在地理论或公司理论)，(2)哪些问题由公司的法律管辖，以及(3)与国际私法的运作无关地适用什么规则(例如，证券条例的域外适用)。由于对公司事务有必要的统一规定，因此界定了公司法的适用范围，并从这一角度重新审视了现有的争论。第三，作为基本理论的特殊应用，仔细考察了国际母子公司关系。特别提请注意母公司对子公司行使权力所产生的责任以及子公司可能出现的管理不善。分析了执行这类责任的适用法律，包括母公司股东的派生诉讼(两级派生诉讼)。第四，审查了新公司法中潜在的问题。有人提醒说，新法典试图将所有问题作为实体法来解决，但这种方法是错误的，已经发现了几个令人遗憾的结果。最后，用英文向外国读者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.