企業集團 不當內部去來 規制의 法政策的 理解

Abstract

The transactions between the group-affililated firms, which I label as intra- group transactions, are strictly prohibited in Korea. The Antitrust and Fair Trade Law, for instance, regards such deals as illegal, if the prices on which the contracting firms voluntarily agreed do not satisfy the arm's-length deal conditions, since it is believed that such subsidy enables the group firms to dominate the relevant markets. If the wealth is transaferred from firm A to firm B in a corporate conglomerate, moreover, the Korean corporate law also allows the shareholders of the firm A to make its directors liable for such losses. The directors of the firm A do not owe any legal duties to the shareholders of the firm B, and therefore, it does not matter whether all the shareholders of the firm A and firm B are better off as a whole. This paper tries to examine whether such legal policy is socially desirable, and particularly argues that the intra-group transactions ― and wealth transfer effect associated with such deals ― should be allowed if the value of the whole corporate group is increasing due to such transactions. First of all, the intra-group trades themselves do not have any negative or harmful externalties to the competition in the relevant market. Although it is sure that the subsidized firm will take better position to compete, this is just like an entrepreneur having a rich father who is ready to finance the venture. To put it another way, such benefit from group-affiliation is merely financial one in essence. From the corporate law perspectives, on the other hand, I argue that the minority shareholders are willing to choose the rule under which they are not entitled to sue the managers if the value of the whole corporate group is increasing. Given such value-increasing intra-group transactions, the minorities are better off ex ante, if the group-firms are statistically equally benefited from the inter-group deals. Moreover, shareholders are able to diversify their portfolio to the whole group-firms and therefore reduce the firm-specific risk to nearly zero. Finally, the probability of intra-group trade and wealth reduction associated with it may be already reflected to the market price of the stock. Such several mechanisms imply that the investors who are ready to put the money on the group-affiliated firms might prefer the rule that enables the value-increasing intra -group transactions to occur. To be sure, such liberalization might have side effect to the incentive of controlling shareholders of the corporate group to choose the ownership structure. Applying to the intra-group deal context the current economic model on the relationship between the level of inverstor protection and the firm's ownership structure, this paper shows that the possibility for the controlling shareholders to engage in the intra-group transactions may distort the incentive to choose optimal ownership structrue of the group. Such distortion, however, should be subject to the ex post remedies provided by the liability regime, because the ex ante regulation results in the accompanying inefficiencies due to the regulator's lack of the information and high enforcement costs. Current regulatory regime, therefore, should be viewed as a second-best measure to regulate the above distortions.