협력업체 종업원들에 대한 대기업의 스톡옵션 도입 필요성 -정의와 시장 차원에서의 초과이익공유제 검토-

There has been a long social debate on the co-growing between large companies and its cooperate companies including subcontractors, for this issue can be the foundation of the vitality and prosperity of a community as well as the increasing factors for national competitiveness. The recent arguments for sharing excessive earnings of large companies may be one of the typical examples. But till now there has not been enough social consent on why and how this should be put in this society through free market economy and rule of law system. Thus, this article starts with throwing some questions on whether co-growing or sharing excessive earnings can be justified from legal point of view, and if so, to whom the duty from co-growing should be fulfilled. If large companies should assume the additional duties besides providing a return due to pre-arranged deals, there must be binding normative basis which are further than mere declaratory responsibilities. The author concludes that binding-trade relationship may be recognized when one company depends on the other through continuous and repetitive trades, and these coercive factors can be considered as a legal matter, which impose extra burdens on binding companies, namely large ones. Binding- trade relationship as a legal matter is not a basis of co-growing supportive duty of large companies, but also guidelines for the scope of the obligation, which can be interpreted variously without it. If one wants to put some responsibilities like these, the requirements on increasing efficiency of the companies as well as justice principle should be satisfied. In relation to this basic principle, it can be said that profit and loss must be shared according to the same ratio, and benefits must be given on one's contribution. The direct factors affecting productivity of companies, regardless to its size, are individual employees. However, it cannot be sure that the benefits from large companies will be transferred to subcontractors’ employees due to its unclear and non-democratic ownership, if one approaches to this issue as a matter of company vs. company, even though the large companies perform its co-growing duties. If the owners of subcontract corporate have special relationship with those of its counterpart large company, e.g. family or relatives, the parties could abuse the co-growing duties as a channel for transferring wealth illegally. Otherwise, the direct benefit to the cooperate companies is not suitable to the competition law, for it can be regarded as discriminating other subcontractors on the relative market. It is desirable that there are diverse subcontractors competing each other, which make the national economy abundant. Therefore, the author concludes that the large companies’ duties, e.g. sharing excessive earning, are obliged to the employees of cooperative companies rather than subcontractors themselves. This way can avoid the unreasonable sharing outcomes without bearing risk, and play a role of compensating their irrational remuneration whose labor are same or more than those of large companies. The author recommends that the cooperative companies should be added as a relative company in the Article 542-3 of the Commercial Act and the Article 9(1) of its Enforcement Decree, which regulates stock option granting to the third parties. Also, stock option of the large companies could be given to the subcontractor's’ employees through the revision of the Article 29 of Labor Basic Welfare Law relating to the employee ownership association. This alternative can be acceptable from justice perspective, and elicit the voluntary cooperation of the community members, which enables the companies to enjoy stable employment of skilled workers resulting in increasing productivity. The author expects that this means may lessen the deepening of wealth gap due to polarization, and prevent the segmental phenomena between permanent workers and temporary workers.