기업집단의 지배구조와 회사기회 유용금지에 관한 소고

Abstract

After IMF, the greatest concern of Company law was an improvement of the governance structure and ownership of the corporate group that has been shown in the process of restructuring of the company. Among the discussion for the improvement of governance, expedient succession of management rights and using the opportunity of the company of the Group has been pointed out as a typical problem. In the case of Korea, since as many as controlling shareholders of the Group exercise a mighty influence in only a small number of shares, discussion to these problems has been weighted. To solve this problem, the Ministry of Justice was trying to prepare a bill to prohibit the companies useful opportunities by amending the Commercial law in 2008 and 2006, but has not been realized in the conflict of opinion, and then in 2011, this regulation of prohibition on it has been documented. The great meaning of this is that it defined explicitly directors's acts infringe on the interests of the shareholders. However, the concept of prohibition companies useful opportunity is ambiguous, when applied to reality, questions has been raised to its effectiveness. Also in the case of companies, there is a possibility that the company's ordinary activities up to the atrophy by over-regulation, if this provision is used for a fair trade act for the purpose of protection of competition, for the tax law to tax the gratuitous transfer of wealth, and for a commercial law to restrict giving a task en masse for the purpose of protection of shareholders as a complementary means. However, since regulations for this is of course and that it is necessary, there obviously controlling shareholders have useful chances for their private benefits of such an irregular donation in the range of business opportunities giving a task in a lump, support of transaction, and the opportunity to defraud the company. In this paper, I would like to present some strategies in order to effectively apply the prohibition on companies useful opportunity to dominate the structure of the corporate group. First, the fact is that the number of directors and outside directors of the corporate group in Korea is very small, controlling and monitoring of management in general is hard to be carried out effectively by themselves. Thus, while practically strengthening the function of the Board and the audit, it is one that must be taken measures to increase the number of outside directors and registration director, for the activities of outside directors that are independent, there may be appointed outside directors with the approval of the shareholders without any interests of the majority also becomes one alternative. Second, since it is limited to directors and executive officers are applied subjects of the prohibition of companies useful opportunity, room for opportunities for companies virtually to come in handy by owners of companies or their relatives is large, within the target range it is intended that such execution of business instructors must also contain, it is possible to legislation is reasonable range of entities that can be equated to the director rather than that due to the interpretation. Third, it should be improved by enhancing the regulation moved against above two-thirds of the approval procedure is useful points. Finally, taking into account the reality that both the business community and people interested are concerned, within the range that does not atrophy investment willingness of entrepreneurs to ensure the effectiveness of after-the-fact regulation of the corporate group, this system should be rationally and flexibly operated.