공기업의 지배구조와 운영에 관한 비교법적 검토 : 미국의 연방 공기업 법제

Abstract

The economic and corporate structure of the United States has traditionally been founded upon the principle of free market economy and the private companies, and the roles assumed by the government corporations or public enterprises in the U.S. economy have been relatively limited. The government corporations in the United States were mostly established in extraordinary political-economic situations such as economic depression or war for specific public purposes and then disassembled upon the achievement of such designated purposes. Yet, in certain areas of strong public concern and interest, some government corporations and public enterprises have assumed their idiosyncratic functions. The general law regulating the government corporations in the United States is the federal statute of the Government Corporation Control Act. The Government Corporation Control Act lists each of the government corporations with the mandate that each government corporation should be established by the statute, and sets forth regulations and control applicable to the government corporations. As such, the government corporations of the United States are regulated and controlled by public law in terms of, inter alia, budget, accounting and audit; such control, however, is primarily autonomous and a posteriori control. From the comparative perspectives, the law and the system of governance of government corporations of the United States have certain meaningful legal and policy implications for the effort to gradually and incrementally bring more autonomy into the corporate governance and the relevant laws applicable to the government corporations and public enterprises of Korea while compromising neither public cause nor effectiveness. The relevant experiences of the United States indicate that the government corporations could be effective intermediaries in the effort to transfer certain of government roles to the private sector for the change of organization management and the increase of asset value, with the potential increase of the rate of return by blocking the intervention of political logic in the decisions pertaining to the investment and the corporate governance. When it is not possible to finance only by the participation of private financial institutions due to the difficulty in risk analysis notwithstanding the strong public interest, government corporations may enable the achievement of the public cause through policy loans or guidance policy finance, and may ease budgetary appropriations through loans without exacerbating the deficit. As such, should government corporations maintain sound governance and financial structure in pursuance of the requirements under the applicable public law and the management and the control of the government, the government corporations may serve as the creative means of implementing public policy goals for and by the elected public officials. As many of government corporations are established and operated in the areas closely related to the everyday civic life of the citizens such as water supply and communication, proper and reasonable operation of the government corporations has a direct corelation with the welfare of the citizens, while, at the same time, the failure thereof might also adversely affect the citizens as palpable difficulty and burden. The law and the system of the government corporation encompassing those of the management and the control should be rationalized in the direction and at the point balancing autonomy, efficiency and responsibility required for proper operation of the government corporation under the objectives of the establishment and the system as a whole of the government corporation.