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Author

Jeehye You

Date of Award

5-2012

Author's School

School of Law

Degree Name

Doctor of Juridical Science (SJD)

Degree Type

Dissertation

Abstract

Reflecting the modern zeitgeist of improved corporate accountability and transparency, the movement in Korea to enhance Corporate Social Responsibility has permeated entire sectors of society. In contrast to the apparent ubiquity of CSR, however, Korean corporate law remains relatively silent on the issue, omitting to include any explicit provision governing the concept. In response to this lack of legislation, the country's corporate scholars have attempted to introduce American legal theories systems and laws on CSR into Korea. Yet traditional Korean jurisprudence provides no defining foundation for CSR- rather, the dominant view in jurisprudence and scholarship passively resists instituting corporate responsibility into the law. In response to this jurisprudential and academic shortcoming, this Dissertation attempts to provide a comprehensive guide to the relevant legislation and theory on CSR in Korean corporate law, by employing a comparative study of the relevant American theories and laws. Proceeding from this analysis, it ultimately suggests a legislative blueprint for establishing a foundation to legitimize and effectively implement CSR in Korean jurisprudence.

Chapter Two first demonstrates why CSR matters by illustrating recent corporate scandals in Korea and the United States. It then proceeds to explore differing conceptions of CSR before finally articulating the pertinent legal issues by providing an overview of the first modern legal debate on CSR in the United States. Following this overview, Chapter Three reviews U.S. corporate governance models in order to clarify the purpose of corporations in order to understand their defining characteristics and the nature of managerial fiduciary duty. Perspectives on the nature of CSR in American jurisprudence have diverged into two main corporate models: (1) "shareholder primacy," which argues that corporations (via their managers) should serve only their shareholders; (2) the "stakeholder model," which holds that corporations (via their managers) can or should serve their other (societal) stakeholders as well. Critics of CSR generally adhere to the traditional "shareholder primacy" theory that managers, as fiduciaries for shareholders (as well as corporations), cannot prioritize CSR in decision-making if it diminishes shareholder profits. Proponents of CSR, however, argue that a corporation exists as an independent legal entity and not a property of shareholders (i.e. the "stakeholder model"), and that managers can (and/or should) fulfill CSR, even at the cost of diminishing shareholder profit. A consensus on these conflicting theoretical models has so far proven elusive in American corporate jurisprudence. However, despite the ongoing theoretical controversy over CSR, several statutes and cases appear to have already implemented CSR in the U.S. legal system. Chapter Four turns to these American instances of CSR implementation by legal means. Most CSR-relevant corporate laws fulfill the principle by facilitating voluntary corporate contribution (via managers) to society (i.e. the "stakeholders") through charitable contributions, the business judgment rule and constituency statutes. Notably, however, most regulatory laws extensively implement CSR in a broad spectrum of areas beyond corporate lawe. g., contract law, tort law, antitrust law, labor law, consumer safety law regulatory protections, and environmental statutes.

Chair and Committee

Frances H. Foster, Professor of Law, Supervising Professor; John Owen Haley, Professor of Law, Examining Professor; Gerrit De Geest, Professor of Law, Examining Professor.

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