회사분할과 과징금 납부책임의 승계 가능성

Abstract

When a corporation is split to generate subsidiaries, complex problems of distribution of negative assets arise. It is not legally clear which corporate body should pay the portion of administrative surcharges that was levied onto new subsidiary for the original corporation's cartel activities; the original corporation or a subsidiary. Case laws and academic discussions have given organized answers to questions of distribution of negative assets that had been accrued or recognized as of the split but not to questions about responsibilities for administrative surcharges that were not made firm until the split. Commercial laws prescribe that asset distribution would follow the distribution scheme provided in a split plan prepared for the corporate division, however, the plan is supposed to apply to such assets that are already recognized or at least able to be recognized at the time of division; when it comes to problems of potential and/or unrecognized debts, commercial laws seems to be negative to transfer of such assets to subsidiaries, for reasons that such assets are not able to be shown in financial statements, and as a result original corporation should take the burden of paying surcharges. Next, similar question remains with regard to compulsory succession of the burden because some of such responsibilities may be transferred to subsidiaries despite of transaction parties' intention. This issue should be solved by principles of transfer of administrative liabilities because case laws have not dealt with this kind of legal questions of transfer of unaccrued and/or unrecognized liabilities. Majority of academia generally agree that causes of liabilities for violations can be transferred to third parties to certain extent even if they are parts of personal responsibilities instead of responsibilities levied on nonpersonal objects. There do not exist, however, academic consensus about grounds and scope of the extent of nonpersonal res- ponsibility transfer. The author argues that nonpersonal responsibility can be transferred to third party only to the extent that it is made firm and recognizable, in terms of appearance, possiblities of actual action, and parties' perception, so as to be identified close to actual action. This is a kind of 'sliding scale' standard that tries to decide liabilities of certain conduct according to growing gravity of the conduct. Recent judgment by Supreme Court which this article reviews seems to has followed the author's view, in that it says “there was not administrative duties to original corporation before the split and nothing can be transferred to subsidiary”. This judgment suggests a lot to legal solutions to issues of future corporate form changes.