상법상 ‘특수관계인’ 개념의 문제점

Abstract

The term ‘specially related persons’ is used in various Acts in Korea, in more than a total of 50 Acts, in particular in the Monopoly Regulation and Fair Trade Act and the Korean Commercial Code. This terminology is adopted in thee Acts in order to limit economic activities between corporations and ‘Specially Related Persons’. Terms with a similar meaning are ‘Largest Shareholder’ and ‘Major Shareholder’ which also appear in many provisions that limit insider trading between a director and his corporation, and the dealing among interested parties - especially between a corporation and its shareholders. The prohibition of insider trading aims at removing the conflict of economic interests that may arise between a director and his corporation. However, the Korean Commercial Code further prohibits ‘Specially Related Persons’ from becoming outside directors of the corporation whose very shares are owned by the person in question. Such persons are banned from engaging in commercial transaction with the corporation. It is evident that the purpose of such regulation is to prevent the concentration of wealth of a corporation in the hands of a handful of ‘Specially Related Persons’. The scope and extent of such terms are provided in the enforcement ordinances of the Government. The problem is that enforcement ordinances include a number of ambiguous concepts that fail to clearly define the terminology, ‘Specially Related Persons’, and as such, the definition varies greatly across different Acts. Moreover, the scope of ‘Specially Related Persons’ is too broad to define or identify, because it is provided not by the economic relationship of the economic topics covered, but by the traditional blood relationships of each person. The degree of kinship that fall under this definition can go as far as six degrees from each paternal line and maternal line. As a result, it is extremely difficult to grasp correctly in contemporary society with modern family structures all possible ‘Specially Related Persons’, hence making it impossible to enforce these provisions. This paper suggests a drastic reduction in the scope of the definition of ‘Specially Related Persons’, so as to define the term not based on blood relationships, but on whether the parties involved form a common household in financial terms. Furthermore, shareholders should be excluded from the list of those culpable of insider trading should they hold shares of their corporation, because shareholders are not in a position to determine a transaction with the corporation. Unlike directors of a corporation, shareholders are not involved in managing the day to day business operations of corporations.