기업집단법제의 기본적 문제에 대한 소고－일본에서의 기업결합에 관한 규율과기업결합법제에 관한 검토현황을 중심으로－

Holding company in Korea, through the exercise of voting rights or over personnel, and the de facto control of the subsidiary, which is often. But the issue of responsibility according to the dominance of the holding company focused on governance, citing the reason for legal binding of indirect or de facto domination is weak, do not cover actively. This is related with the problem of whether or not to admit the reality of the corporate group. I think the buzzword in recent years, the group of companies that are the problems of legislation, that discussed the need to establish a logical basis to be held accountable in accordance with the rule that "where domination is responsible". There is two type of attitude of legislation. One is to resolve the problem through the legal principle of company law that is based on the assumption of individual companies, does not admit the reality of the group of companies, like in the Anglo-American law group. Another is to resolve the problem through the legal duties and responsibilities of the parent company, like in Germany. In Korea, it has been to resolve the problems is related with group of companies through the legal principle of company law, based on companies with independent legal personality. However, due to the activation of the holding company system, it is desirable for a difficult problem not to solve through conventional company legal logic but to solve through legislative complement. The essence of the business group legislation is to take responsibility of accompanying constant domination of the subsidiary to the parent company against the minority shareholders or creditors of the subsidiary. Actually, it is difficult to lead the logic of responsibility associated with substantial control, not only through director's responsibility for the third party but also through doctrine of piercing the corporate veil to be applied to the closed company. Therefore, in conjunction with the business combination, is preferable in terms of predictability in the position of the parent company to take command and mandate stipulated, then director of the subsidiary to the parent company's instructions, such instructions on burden of responsibility to the parent company to form. In other words, I believe that it is desirable to be responsible for the domination of authority granted to the parent company through the laws and regulations stipulated in the position of the parent company.