재벌의 내부거래를 둘러싸고 나타난 규범의 지체현상과 그 극복 - 공정거래법상 특수관계인에 대한 부당한 이익제공 금지 규정을 중심으로 -

In a chaebol, because a dominant family exercises control with only a small equity-holding, a sharp disparity exists between cash flow rights and voting rights. In a controlling minority structure, like chaebol, the controller reduces managerial agency costs but creates its own agency costs. Furthermore, the disparity exacerbates the controller’s agency costs. Many of socially controversial affiliated transactions inside chaebol are attributed to the controller’s agency costs. Korea has adopted U.S. style corporate governance rules and provisions to deter corporate agency problems. Unfortunately, U.S. style rules are more focused on dispersed ownership companies, and they have proved ineffective to address the controller’s agency costs in chaebol. In Korea, the affiliated transactions have been of interest not only from corporate governance field, but also from Monopoly Regulation and Fair Trade Law(hereinafter, ‘MRFTA’). Korean Constitution provides the prevention of economic concentration and the MRFTA promulgated a new provision, Article 23-2, in 2013. Article 23-2 prohibits unfair support to a specially related party. More specifically, chaebol controller and his/her families are not allowed (i) to involve a transaction with a company under unfairly favorable terms to them, (ii) to usurp certain business opportunities of the company, and (iii) to involve large scale transaction with the company. The controller may face criminal charges as well as cease and desist order and surcharges from Korean Fair Trade Commission for the violation of Article 23-2. Article 23-2 is the attempt to directly address controller’s agency problems in a chaebol system. It is expected to minimize conflict of interest situation between companies and the controller. By doing so, minority shareholders and creditors of chaebol companies could have better protection of their interests.