새로운 기업형태의 도입에 관한 법적 고찰

Abstract

A Legal Study on the Introduction of New Business Association Types Jae-Moon KimThe background of popularity of LLC’s and LLP’s in the U.S. and their recent adoption in Japan is that they enable owners to manage the business themselves and to still enjoy the limited liability privileges and get pass-through taxation treatment like in partnerships.Recent Amendment Bill of the Korean Commercial Code in regard of new business association type introduction, as prepared by the Ministry of Justice, has concluded to adopt an LP as a Commercial Code partnership type and an LLP as a hybrid limited liability business entity.However, the Korean new LP as defined in the Amendment Bill has a demerit that it can not give the limited liability privileges to managing partners even with respect to partnership matters that were not done or supervised by themselves. Also the new LLP type as defined in the Amendment Bill has a demerit that it can not enable a single taxation treatment under the current Korean tax rules.However, fortunately there is a recent movement to adopt the U.S. type partnership taxation system by the Ministry of Finance and Economy.If that comes realized, it is probable that the new LLC type will become the most attractive business association type among small-sized close business associations in that it gives management flexibility as agreed among members of the LLC and still has privileges of both limited liability and single taxation.I think adoption of LLP’s instead of LP’s should have been done in that LLP’s give limited liability privileges even to managing partners.Regarding close corporations, I think it is necessary to do a separate close corporation legislation that has detailed default rules which business owners can rely upon when they are not willing to spend a lot of money to lawyers and accountants to make shareholder agreements in advance.