기업집단 부당내부거래(不當內部去來) 규제의 법정책적 이해

Abstract

The transactions between the group-affililated firms, which I label as intragroup

transactions, are strictly prohibited in Korea. The Antitrust and Fair Trade

Law, for instance, regards such deals as illegal, if the prices on which the

contracting firms voluntarily agreed do not satisfy the arm's-length deal

conditions, since it is believed that such subsidy enables the group firms to

dominate the relevant markets. If the wealth is transaferred from firm A to firm

B in a corporate conglomerate, moreover, the Korean corporate law also allows

the shareholders of the firm A to make its directors liable for such losses. The

directors of the firm A do not owe any legal duties to the shareholders of the

firm B, and therefore, it does not matter whether all the shareholders of the firm

A and firm B are better off as a whole. This paper tries to examine whether

such legal policy is socially desirable, and particularly argues that the intra-group

transactions ― and wealth transfer effect associated with such deals ― should be

allowed if the value of the whole corporate group is increasing due to such

transactions.

First of all, the intra-group trades themselves do not have any negative or

harmful externalties to the competition in the relevant market. Although it is sure

that the subsidized firm will take better position to compete, this is just like an

entrepreneur having a rich father who is ready to finance the venture. To put it

another way, such benefit from group-affiliation is merely financial one in

essence.

From the corporate law perspectives, on the other hand, I argue that the...