개정상법에 따라 도입된 합자조합과 유한책임회사에 관한 연구 - 관련규정의 보완점과 제도도입에 대한 평가를 중심으로 - (A Study on Habja-johab (K-Limited Partnership: K-LP) and Yuhanchaekim-hoesa (K-Limited Liability Company: K-LLC) under the 2011 Revised Commercial Law)

서지정보

· 발행기관 : 한국상사법학회
· 수록지 정보 : 상사법연구 / 30권 / 4호 / 123 ~ 183페이지
· 저자명 : 황학천

초록

The 2011 Revised Commercial Law of Korea introduced Habja-johab (hereinafter “K-LP”) and Yuhanchaekim-hoesa (hereinafter “K-LLC”) as the new forms of business organizations. Both entities were originally modelled after the US equivalents, i.e. the limited partnership and the limited liability company, respectively. Three main features have been requested for the new business entity to come. Firstly, more self-autonomy needs to be granted so that its members may have contractual discretion in (i)formulating internal organs, (ii) proceeding with the management, and (iii)distributing the profits and losses among them. Secondly, its members should only take limited liability against entity's creditors. Thirdly, the partnership taxation treatment should be applicable to allow (i) exemption from the double-taxation and (ii) direct attribution of the profits and losses incurred at the entity level to its members for tax purposes. However, K-LP and K-LLC, as enacted by the Revised Commercial Law, lack certain main features and thus require amendments to properly serve the purpose of their introduction and to enhance their usefulness. Additionally, the taxation regime is required to be amended so that the newly introduced business forms might be eligible for the partnership taxation. Apart from the foregoing, it should be noted that introducing K-LP and K-LLC as new business organizations into the Korean legal system has presented such a dilemma from a long term viewpoint. Since the existing Commercial Law of Korea had long been providing for Habja-hoesa and Yuhan-hoesa, which are very similar to K-LP and K-LLC, respectively, the Revised Commercial Law can not avoid the severe criticism of redundant legislation. Habja-hoesa and K-LP are analogous and should be converged in the long run. By the same token, Yuhan-hoesa and K-LLC must be combined into one. Each form of the business entity so combined, with the slight touch of amendments for more flexibility, will be a perfect tool for the small or medium sized business enterprises in the area of knowledge and human capital intensive “new industry” of Korea.

영어초록

The 2011 Revised Commercial Law of Korea introduced Habja-johab (hereinafter “K-LP”) and Yuhanchaekim-hoesa (hereinafter “K-LLC”) as the new forms of business organizations. Both entities were originally modelled after the US equivalents, i.e. the limited partnership and the limited liability company, respectively. Three main features have been requested for the new business entity to come. Firstly, more self-autonomy needs to be granted so that its members may have contractual discretion in (i)formulating internal organs, (ii) proceeding with the management, and (iii)distributing the profits and losses among them. Secondly, its members should only take limited liability against entity's creditors. Thirdly, the partnership taxation treatment should be applicable to allow (i) exemption from the double-taxation and (ii) direct attribution of the profits and losses incurred at the entity level to its members for tax purposes. However, K-LP and K-LLC, as enacted by the Revised Commercial Law, lack certain main features and thus require amendments to properly serve the purpose of their introduction and to enhance their usefulness. Additionally, the taxation regime is required to be amended so that the newly introduced business forms might be eligible for the partnership taxation. Apart from the foregoing, it should be noted that introducing K-LP and K-LLC as new business organizations into the Korean legal system has presented such a dilemma from a long term viewpoint. Since the existing Commercial Law of Korea had long been providing for Habja-hoesa and Yuhan-hoesa, which are very similar to K-LP and K-LLC, respectively, the Revised Commercial Law can not avoid the severe criticism of redundant legislation. Habja-hoesa and K-LP are analogous and should be converged in the long run. By the same token, Yuhan-hoesa and K-LLC must be combined into one. Each form of the business entity so combined, with the slight touch of amendments for more flexibility, will be a perfect tool for the small or medium sized business enterprises in the area of knowledge and human capital intensive “new industry” of Korea.

참고자료

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