기업집단 내부거래 및 일감몰아주기 규제 근거의 검토

Abstract

The transactions between affiliated companies in a corporate group are subject to several regulatory schemes in Korea. Under the corporate law, for instance, they are regarded as self-dealing or usurpation of corporate opportunity, which should be approved by the board of directors. At the same time, they are also subject to regulatory penalty for unfair trading, which is provided by the Korean anti-trust law. This paper argues, however, such a complicated rules to deter corporate groups from engaging in intra-group transactions have very weak theoretical foundation, and thus they are likely to cause both under- and over-regulation problems. At corporate-group level, for instance, such intra-group transactions with unfair trading conditions may have an effect of transferring wealth from minorities to controlling shareholders. Such effect is governed by the self-dealing scheme of the general corporate law over the world, but the Korean anti-trust law additionally imposes ex-ante prohibition on such transactions if the conditions are extremely unfair. This regulation may cause over-regulation problem. On the other hand, several intra-group transactions do not aim at transferring wealth to the controlling shareholders. Information technology, public relations, procurement, and logistics services within corporate groups, for instance, are sometimes operated by an affiliated companies wholly owned by the controlling families. In such cases, the anti-trust law regime causes under-regulation problem by exempting the intra-group transactions which are proved to be efficient with regard to the corporate group. Such transactions should be subject to regulation, since the controlling families do not have any legally justifiable entitlement to do such stable businesses. Regulators and commentators sometimes take into account the externality of intra-group cross-subsidies. They argue, for instance, that such cross- subsidy may help the affiliated company win the competition by providing for a better financial position. Such an anti-competition effect and thereby concentration of economic power, they argue, may have a harmful effect to the national economy. They are simply wrong, however. Such an argument could not find any supporting evidence in anti-trust economics. This paper analyzes the externality of intra-group transactions, and shows that their seemingly anti-competition effect or unfairness stems from the fact that each affiliated company has their stakeholders respectively. Again, this is an corporate-group level discussion, and thus the external effects of intra-group trading may be fairly said to mere illusion.