출자총액제한제도의 경제학적 및 경제헌법적 분석

Good corporate governance encourages voluntary choice in markets. Corporate laws protecting related interest parties are, therefore, a most effective way in shaping corporate governance structures. More specially, corporate laws should minimize the compulsory clauses to protect interest groups, allowing more discretion to management and to induce efficient management decisions. On the other hands, is also needs to provide outside shareholders an opportunity to better understand the problems of corporate governance of companies, to prevent arbitrary decisions of a large shareholders and the lack of transparency. Restrictions on Equity Investment(ROI) regulates that any corporation belonging to a designated business corporation group shall be prohibited from acquiring or owning stocks of another domistic companies in excess of 40 % of its asset. The system was enacted prevent dominent share holders(Chae-bul) from pursuing their private interest through the small investment into their subsidiaries, and to improve the corporate governance. In this study, I consider the history, the policies and the contents of the ROI as well as its problems, substitution countermeasures. Specially, I put emphasis on trying to find out the problems of ROI and the substitution countermeasures for this system. This paper critically reviws the rationale of ROI provided in Lim(2003), and also the proposal by the Korea Fair Trade Commision(KFTC) to base regulation using th "Indices of Ownership Control Disparity(IOCD). I find that IOCD is problematic if it is used as a criterion for exempting firms from ROI. In conclusion, it is desirable that the ROI shall be abolished in near future. Because this system has much more problems than any other systems that were enacted in commercial law and securities exchage law. Futhermore, this system exists still now only in Korea. In recent, holding company, outside directors, disclosure, audit committee, consolidated financial statements etc are enacted in commercial law and securities exchange law to improve corporate governance in Korea.