합자조합(LP), 유한책임회사(LLC)의 도입과 법적 문제점

Abstract

The Ministry of Justice tries to introduce Limited Partnerships(in Korean Hapja Johap) and Limited Liability Corporations(in Korean Yuhanchaikim Hoisa) into the Commercial Code. Hapja Johap originates from Limited Partnerships in U.S. and a Yuugensekininzigiyou Kumiai(有限責任事業組合) in Japan and a Yuhanchaikim Hoisa originates from Limited Liability Corporations in U.S. and a Goudou Kaishya(合同會社) in Japan. In U.S. the “check-the-box” regulations, issued in 1996, simplify and liberalize the entity classification. Under this elective regime, most newly-formed domestic unincorporated business entities will automatically be classified as partnerships unless they elect to be treated as associations taxable as corporations. Thus the Limited Partnerships is indistinguishable from the Limited Liability Corporations in double-tax and passthrough treatment. But the Korean tax laws seek to distinguish a Johap from an association taxable as a corporation based on a “legal personality” test. Thus a Yuhanchaikim Hoisa will be taxable as a corporation. Yuhanchaikim Hoisa will not be different from a Private Company(有限會社) in Commercial Code, except that it will be managed by the articles of incorporations decided between members. If so, what is the practical benefit to introduce Yuhanchaikim Hoisa into Commercial Code? To vitalize the Hapja Johap and Yuhanchaikim Hoisa, it needs to discuss the introduction of the elective partnership taxation regime into Korean tax laws.