EU 企業集團法制에 관한 검토 - 規制의 轉換을 중심으로 -

Abstract

Since traditional corporate law assumes that each company is a separate legal entity in Korea, it has been less effective in protecting minority shareholders of a subsidiary company in corporate groups. Under the premise that the economy should attract foreign capital and thereby be stimulated, the protection of minority shareholders of subsidiary companies will inevitably become an issue in legislation. In this respect, the German Law of corporate groups, Konzernrecht is the most elaborate. It aims to strike a balance between minority shareholders protection and nimble management of corporate groups. Over the past decades, various attempts have been made to introduce the Konzernrecht in order to solve controlling shareholders’ extractions of private benefits of control in corporate groups. However, it has become considerably more difficult to adopt the law as it is. Especially, there are significant discrepancies between corporate law on the books and the institutional reality of corporate practice. Furthermore, Major changes in corporate governance are often generated by external shocks such as financial scandals, economic crisis. This paper classifies various views on these issues into two categories by offering proposals for prospective legislation of corporate groups. First of all, in view of regulation during formation of corporate groups (Konzernbildungskontrolle), it focuses on crucial matters of corporate restricting: takeover bid, share exchange and share transfer. Also, in view of regulation after its formation (Konzernrecht im engeren Sinn), it deals with significant matters of regulations on meetings of shareholders, disclosure and liability. Since this discussion raises serious challenges to traditional corporate law doctrines, this paper would suggest the following. The first step is to institutionalize “representative action” (action pro concerno) of Konzern in order to establish a legal system of corporate groups. The second step is to introduce “multiple derivative suits” that mitigate conflicts of interests between shareholders of parent and subsidiary companies. The third step is to expand the scope of compensation of damages and change the principle of a burden of proof to manage an organization of corporate groups effectively.