기업집단의 동일인 확정에 관한 검토 (Review on the Determination of the Same Person in a Business Group)

서지정보

· 발행기관 : 한국경쟁법학회
· 수록지 정보 : 경쟁법연구 / 43권 / 233 ~ 259페이지
· 저자명 : 서 정

초록

The determination of the same person has an important normative significance. The scope of the enterprise group(business group) and whether it is a regulated large business group depends on who is determined as the same person in the business group. In the meantime, each business group has decided on the same person through the so-called internal agreement among members of a controlling family and submitted it to the Fair Trade Commission(FTC), and the FTC has determined the same person based on these data. It is believed that the FTC's practices on the determination of the same person have not deviated significantly from the socio-economic perception of the general public. However, in recent years, in the process of succession of management from generation to generation, the share of ownership of the controlling family continues to dilute, disputes over management among these family members increase, and corporate groups with ownership and governance structures different from those of conventional chaebols have appeared. There are many changes in the environment surrounding the confirmation of the same person.
The FTC can exercise its discretion in determining a specific company or a specific person as the same person among a number of candidates based on data collected legally. In exercising such discretion, the decision should be checked once again by fully reflecting the legislative purpose of the Monopoly Regulation and Fair Trade Act(MRFTA), maintaining objective fairness, and sufficiently presenting the data to assess the legality of the decision. Considering the widespread effect of the designation of a business group, the designation should be made in an objective, transparent, and predictable manner as much as possible, so the determination of the same person should be determined objectively based on a quantitative ‘equity ratio’ standard. However, in exceptional cases where it is difficult to uniquely determine the same person based on the equity ratio alone, or if the ‘equity ratio’ standard is far from economic reality or social perception, it would be desirable to determine the same person in consideration of qualitative ‘control’ standard.
Specifically, if there are multiple candidates for the same person, such as a person who exerts a dominant influence on the management of the company other than an unconscious stakeholder, the FTC will ultimately select the person who meets the legislative purpose of the corporate group regulation system. On the other hand, there is a concern that the socioeconomic realities of the corporate group's governance relationship may not be properly reflected when the ‘equity ratio’ standard is mechanically applied to a business group in dispute over management. In addition, in the case of companies in which the National Pension Service or other funds occupy the largest shareholder position with around 10% equity, a more cautious approach is needed to determine a person with minority interests as the same person. It would be desirable for the FTC to present criteria that stipulate more specific principles and procedures for the determination of the same person. In the long term, it is necessary to consider the method of separating the reference point of the business group from the regulated groups of people to prevent tunneling in large corporate groups.

영어초록

The determination of the same person has an important normative significance. The scope of the enterprise group(business group) and whether it is a regulated large business group depends on who is determined as the same person in the business group. In the meantime, each business group has decided on the same person through the so-called internal agreement among members of a controlling family and submitted it to the Fair Trade Commission(FTC), and the FTC has determined the same person based on these data. It is believed that the FTC's practices on the determination of the same person have not deviated significantly from the socio-economic perception of the general public. However, in recent years, in the process of succession of management from generation to generation, the share of ownership of the controlling family continues to dilute, disputes over management among these family members increase, and corporate groups with ownership and governance structures different from those of conventional chaebols have appeared. There are many changes in the environment surrounding the confirmation of the same person.
The FTC can exercise its discretion in determining a specific company or a specific person as the same person among a number of candidates based on data collected legally. In exercising such discretion, the decision should be checked once again by fully reflecting the legislative purpose of the Monopoly Regulation and Fair Trade Act(MRFTA), maintaining objective fairness, and sufficiently presenting the data to assess the legality of the decision. Considering the widespread effect of the designation of a business group, the designation should be made in an objective, transparent, and predictable manner as much as possible, so the determination of the same person should be determined objectively based on a quantitative ‘equity ratio’ standard. However, in exceptional cases where it is difficult to uniquely determine the same person based on the equity ratio alone, or if the ‘equity ratio’ standard is far from economic reality or social perception, it would be desirable to determine the same person in consideration of qualitative ‘control’ standard.
Specifically, if there are multiple candidates for the same person, such as a person who exerts a dominant influence on the management of the company other than an unconscious stakeholder, the FTC will ultimately select the person who meets the legislative purpose of the corporate group regulation system. On the other hand, there is a concern that the socioeconomic realities of the corporate group's governance relationship may not be properly reflected when the ‘equity ratio’ standard is mechanically applied to a business group in dispute over management. In addition, in the case of companies in which the National Pension Service or other funds occupy the largest shareholder position with around 10% equity, a more cautious approach is needed to determine a person with minority interests as the same person. It would be desirable for the FTC to present criteria that stipulate more specific principles and procedures for the determination of the same person. In the long term, it is necessary to consider the method of separating the reference point of the business group from the regulated groups of people to prevent tunneling in large corporate groups.

참고자료

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