환상형 순환출자에 관한 회사법적 검토 - 의결권 제한 가능성을 중심으로-

Abstract

Circular shareholding is a form of mutual equity ownership by three or more companies, through purchase of shares or subscription od new shares. Circular shareholding occurs because of the ‘Chaebol’ ownership structure, where the control power makes heavy investment on the highest-ranking company in the chain, which functions as the holding company within the Chaebol structure. If the controller does not have the sufficient shares within the highest-ranking company to exert control over core companies, lower-ranking companies come to invest in the highest ranking company or core companies, causing circular shareholding. That is, circular shareholding can be seen as a form of ownership structure where the controller of Chaebol seeks to expand its control over the affiliated companies. Therefore, in Korea, circular shareholding has mainly been seen as a Chaebol governance problem related to Korean Fair Trade Act, and has been indirectly regulated by this act in the form of limitation in total amount of investment. However, circular shareholding should be seen as a form of mutual shareholding between companies, which is regulated by the Korean Commercial Act. Therefore, the relation of circular shareholding could be better understood from the Commercial Act’s viewpoint, rather than from the Fair Trade Act’s viewpoint, where policy considerations are more important. With this point in mind, this article examines the regislatiive intent and regulative range of the mutual shareholding regulations within the Korean Commercial Act. Also, this article analyzes ownership structure of the mutual shareholding and, then, What this structure causes problems from th viewpoint of corporate law. Finally, assuming that circular shareholding with such corporate law problems needs to be regulated by the Commercial Act, this article will examine if circular shareholding may be regulated through the limitations in voting rights within the present state of the law.