중소기업기본법상 중소기업협동조합의 중소기업자 지위 연구

Abstract

There are some criteria that need to be met before a small and medium-sized enterprise (SME) is considered subject to Korea’s Framework Act on Small and Medium Enterprises, such as those related to business size, independence for market competition. In the beginning, the Framework Act on Small and Medium Enterprises applied only to corporations and the self-employed as defined by the Commercial Act. Recently however, social enterprises, which are similar to non-profit entities, and general and social cooperatives have been included, when they meet size and independence criteria. This is certainly an improvement as it reflects a correct evaluation of cooperatives: entities promoting market competition and contributing to the public interest. However, when it comes to SME cooperatives, it cannot be taken for granted that they are SMEs under the Framework Act on Small and Medium Enterprises due to unnecessary regulation. The government still has discretion in determining whether SME policies apply to such cooperatives or not. This serves as a kind of reverse discrimination in regulation and runs counter to the principle of equality under the Constitution, both without good reason. “Equal opportunity” should be the basis from which Korean SMEs are legally viewed if they meet the requirements of business size and independence in the Framework Act on Small and Medium Enterprises. This will be consistent with the principle of equality under the Constitution, and also comply with the legislative purpose of the Framework Act on Small and Medium Enterprises and the Small and Medium Enterprise Cooperatives Act. At this point, recent reform of Basic Act on SMEs is considered desirable.