순환출자의 법적 문제 (Legal Issues of the Circular Ownership)

서지정보

· 발행기관 : 한국상사법학회
· 수록지 정보 : 상사법연구 / 32권 / 1호 / 97 ~ 157페이지
· 저자명 : 천경훈

초록

Circular ownership is frequently found in the structure of the largebusiness groups (or chaebols) of Korea. Circular ownership structure wasformed mainly as a way to secure control over the key affiliate companywithin the group with minimum capital contribution. The most seriousproblem arising out of such a structure is the distortion of the corporategovernance as a result of the disparity between the cash flow rights and thede facto control. More specifically, it structurally increases the risk ofmanagerial entrenchment, possibility of distorted management decisionspreferential to the controlling shareholder, and the possibility of the conflicttransactions. Less importantly, it also causes problems such as risk contagionamong the companies participating in the circular ownership structure,misleading effect on the potential investors by means of the fictitious capital,and aggravation of the general concentration.
Since the current law regulates the circular ownership only if theparticipating companies form parent-subsidiary relations as defined under theKorean Commercial Code (i.e., holding majority of shares), virtually nocircular ownership found among the large Korean business groups isprohibited or restricted. Recently many bills have been proposed to regulateor prohibit circular ownership, but more careful approach is required in lightof the limited expected regulatory benefits and the possible negative effectsof the excessive restrictions. This article proposes that, instead of entirelyprohibiting the circular ownership, the voting rights of the controlled company towards the controlling company be restricted when theyparticipate in the circular ownership structure. For this purpose, the KoreanCommercial Code would need to be amended to expand the definition ofthe parent-subsidiary relation at least when the subsidiary is a listedcompany.

영어초록

Circular ownership is frequently found in the structure of the largebusiness groups (or chaebols) of Korea. Circular ownership structure wasformed mainly as a way to secure control over the key affiliate companywithin the group with minimum capital contribution. The most seriousproblem arising out of such a structure is the distortion of the corporategovernance as a result of the disparity between the cash flow rights and thede facto control. More specifically, it structurally increases the risk ofmanagerial entrenchment, possibility of distorted management decisionspreferential to the controlling shareholder, and the possibility of the conflicttransactions. Less importantly, it also causes problems such as risk contagionamong the companies participating in the circular ownership structure,misleading effect on the potential investors by means of the fictitious capital,and aggravation of the general concentration.
Since the current law regulates the circular ownership only if theparticipating companies form parent-subsidiary relations as defined under theKorean Commercial Code (i.e., holding majority of shares), virtually nocircular ownership found among the large Korean business groups isprohibited or restricted. Recently many bills have been proposed to regulateor prohibit circular ownership, but more careful approach is required in lightof the limited expected regulatory benefits and the possible negative effectsof the excessive restrictions. This article proposes that, instead of entirelyprohibiting the circular ownership, the voting rights of the controlled company towards the controlling company be restricted when theyparticipate in the circular ownership structure. For this purpose, the KoreanCommercial Code would need to be amended to expand the definition ofthe parent-subsidiary relation at least when the subsidiary is a listedcompany.

참고자료

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