상장회사특례규정상의 주요주주등 이해관계자와의 거래에 관한 규제 재검토

In 2003, Securities and Exchange Act(SEA) introduced a tighten regulations on related party transactions(sec. 542-9) and provided a general prohibition whereby companies are prohibited form granting loans and similar transactions with directors, major shareholders and their relatives as part of its efforts to promote improved corporate governance and decrease the fraudulent or unfair related party transactions to siphon off the assets of listed companies. In addition, a company's board of directors must approve related party transactions involving amounts in excess of 1% of a company's annual revenues or total asset value, and such transactions must be reported to shareholders at a general shareholders' meeting. A set of transactions showd combined total amount exceeds 5% of the annual revenue or total asset value is also subject to the regulation. The reason for regulating related party transactions is that they might not be undertaken at market prices but can be influenced by the relationship between the two sides of a transactions: there is a conflict of interest for some person in the company. For both controlling shareholders and management, related party transactions can be the mechanism for extracting private benefits of control at the cost of other shareholders. In 2009, after the Securities and Exchange Act was abolished, Commercial Act was revised and provides related party transactions regulation mostly same as the provisions of abolished Securities and Exchange Act. On April 14 2011, the Commercial Act was again amended. The amendments include an array of provisions that aim for enhanced transparency in relation to corporate governance. Especially, in the previous Act, only directors were subject to restrictions on self-dealing transactions. Following the amendments, however, such restrictions shall apply to directors and major shareholders, relatives of such directors and major shareholders, as well as certain affiliated companies. With the amendments of self dealing regulation in Commercial Act, some questions arised, including the relationship between sec. 398(self dealing regulation) and sec. 542-9(related party regulation) of Commercial Act. The conclusions drawn from this study are as follows. First, the listed companies should subject to both sec. 399 regulation and sec. 542-9 to ensure effective control over the related party transactions. Second, the ban on granting of loan, quasi-loans and the debt guarantee etc. by companies to, or in respect of, their directors and major shareholder, relatives of such directors and major shareholders, as well as certain affiliated companies is still meaningful in these days. Some person can be connected to a director and major shareholder as a result of a number of different relationships. However, in order to minimise the administrative burden on companies, the affiliated person should be reasonably reduced. Third, while section 542-9 provides for a general prohibition of loan granting and similar transactions, the provision also contains a number of exceptions to the general prohibition whereby certain transactions can legally be entered into provided that certain criteria are satisfied. There are three exceptions to the general prohibition. One of the exception is an arrangements between group companies with the certain conditions. The companies are not prohibited from making a loan or quasi-loan to another company if that other company is its holding company, subsidiary or sister company in circumstances where the transaction would otherwise not infringe the prudential capacity of companies. According to the recent amendments of decree, the company is not prohibited form making a loan to or similar transactions with a individual major shareholder under the requisite conditions stipulated by decree. However, it should be noted that through related party transactions, controlling shareholders and managers may extract private benefits of control and there is thus a clear need to improve the regulation of related party transactions. It is important to ensure that the companies which is not prohibited from entering into a guarantee or providing security in connection with any loan to a company are limited to group companies, satisfied with the requisited criteria. In addition, the most urgent priority is to strengthen the related party transaction's transparency and the related disclosure requirements.