대규모 기업집단 지정제도의 문제점과 개선방안에 관한 소고

Abstract

The Korean Act on Monopoly Regulation and Fair Trade (hereinafter referred to as the “Fair Trade Act”) designates a large group of companies and imposes various regulations to prevent the concentration of economic power. Regarding the determination of the scope of this “Business Group”, there are criticisms that the current practice of regulatory authorities does not reflect social changes since the original legislation. It is necessary to improve the system in the direction of rationally adjusting the scope of business groups in accordance with the laws and legislative intent. First, the scope of “Related Persons” should be adjusted. The Fair Trade Act defines relatives, executives of affiliated companies, and executives of non-profit corporations as “Related Persons” of a Same Person (“Dong-il-in)” under the influence of the Same Person(The “Same Person” refers to a person who has substantial control over a group of businesses/conglomerate). But Related Persons are strictly separate legal entities from the Same Person, and it is difficult to conclude that they are necessarily controlled by the Same Person or share economic interests with the Same Person. Although the Enforcement Decree has recently been revised, the weakness of the system, which basically considers control by a Related Person as control by the Same Person, cannot be said to have been improved. Second, it is a reasonable interpretation of “control” as a requirement for a Business Group. Regulatory practice has been that a company whose management is dominated by a Related Person is deemed to meet the control requirement regardless of whether the Same Person directly exercises a dominant influence on the management. However, there is no basis in the text and structure of the statute to regard a company that is not controlled by the Same Person as an affiliated company because it is controlled by Related Persons. Third, “ownership interest” as a requirement for a corporate group needs a reasonable interpretation. “A company where the Same Person, either alone or with Related Persons, owns more than 30% of the total issued shares, and is the largest shareholder” is regarded as effectively controlled by the Same Person. In other words, the holding of shares in a company is set as a sign of control of business contents. In practice, a company where Related Person owns more than 30% of the totoal issued shares and is the largest shareholder is regulated as an Affilated Company even if the Same Person does not hold a single share… However, considering the text and structure of the statute, it is not appropriate to regard a company that is not owned by the Same Person as “a company controlled by the Same Person”. Supreme Court ruling on the interpretation of “Related Party” under the In come Tax Act should heavily referred(See Supreme Court 2009Du4746 decision). The practice of regarding a company controlled by a Related Person as an Affiliated Company needs to be changed. A substantive review should be conducted whether the Same Person controls such company in determining an Affiliated Company. This would be in line with the law on the criteria for determining Affiliated Company of a Business Group and would prevent unnecessary infringement of rights.