회사법과 비교한 공익단체법의 역할과 특징 : 왜 혜택을 부여하고 왜 규제하는가?1)
The Role and Characteristics of Public Organization Law Compared to Company Law
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Public organizations play a pivotal role in civil society in that they fulfill the role of covering the gap, ie the third sector where nether profit organizations nor government can meet its special needs. This article reviews three functions that public organizations perform, and suggests how the law should encourage those functions and how to tackle the problems facing the organizations. Firstly, the article deals with issues concerning the formation of public assets. The two main ways to form the assets are founding a public organization and donation. The article suggests that due to conflict of interest regarding the assets, there should be some process for founders or donors to think twice, but if the founders or donors determines their minds by taking formal promotion process the organizational law should separate those assets from them as independent public assets. The article then deals with issues surrounding the principle of maintenance of public assets. Due to the absence of shareholders or beneficiaries in public organizations, the non-distribution constraint is an enshrined principle in Korean law. The tax exemptions given to public assets at founding and operating stages also act to keep the public assets by saving taxes. But, the absence of shareholders or beneficiaries in public organizations causes a concern over how to structure governance system in public organizations. Due to the absence of shareholders in the organizations, the concept of owners' incentive to monitor is not applicable to the public organizations. Therefore, third party monitors have to be placed in the organizations who are independent from the board of the organization. The setting up of an audit committee is also another available option. The articles then investigates whether the mandatory disclosure regime adopted in securities law is appropriate or desirable in the public organizations. The article finally argues that setting up of a combined regulatory authority is preferable to current diversifed regulation in reducing regulatory arbitrage.
Abstract
Public organizations play a pivotal role in civil society in that they fulfill the role of covering the gap, ie the third sector where nether profit organizations nor government can meet its special needs. This article reviews three functions that public organizations perform, and suggests how the law should encourage those functions and how to tackle the problems facing the organizations. Firstly, the article deals with issues concerning the formation of public assets. The two main ways to form the assets are founding a public organization and donation. The article suggests that due to conflict of interest regarding the assets, there should be some process for founders or donors to think twice, but if the founders or donors determines their minds by taking formal promotion process the organizational law should separate those assets from them as independent public assets. The article then deals with issues surrounding the principle of maintenance of public assets. Due to the absence of shareholders or beneficiaries in public organizations, the non-distribution constraint is an enshrined principle in Korean law. The tax exemptions given to public assets at founding and operating stages also act to keep the public assets by saving taxes. But, the absence of shareholders or beneficiaries in public organizations causes a concern over how to structure governance system in public organizations. Due to the absence of shareholders in the organizations, the concept of owners' incentive to monitor is not applicable to the public organizations. Therefore, third party monitors have to be placed in the organizations who are independent from the board of the organization. The setting up of an audit committee is also another available option. The articles then investigates whether the mandatory disclosure regime adopted in securities law is appropriate or desirable in the public organizations. The article finally argues that setting up of a combined regulatory authority is preferable to current diversifed regulation in reducing regulatory arbitrage.
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