기업집단법제에 관한 연구 - 기업집단 소속회사의 손익판단을 중심으로 -

Traditional Korean corporate law assumes that each company is a separate legal entity with corporate personality. Directors’ duty owed to the company mandates the directors to increase the interest of the company itself. In reality, however, many companies are integrated into a group structure, and the directors are often required to serve the interest of the entire group, or at least to consider the group interest in serving the interest of their company. Thus, the group structure raises serious challenges to the traditional corporate law doctrines. Among several corporate law issues arising out of the group structure, the most fundamental issue is how to define and understand the loss/profit of a member company. This paper categorizes various views on this issue into four approaches. The first approach, strongly supported by the Korean court, is to stick to the traditional concept of “separate corporate personality” and focus on the increase/decrease of each company’s asset caused by the event in question. The second approach is to modify the first one by considering the group structure and to understand each company’s loss/profit in a broader and more practical perspective. The third approach, as shown in the French case of Rozenblum (1985) and supported by the reports of the Forum Europaeum on Group Law (1998) and the Reflection Group On the Future of EU Company Law (2011), recognizes the concept of “group interest” under certain conditions and justifies certain act that causes loss to a member company if it fosters the justifiable group interest. The fourth approach is to provide comprehensive rules for group companies such as the Konzern law of Germany, where the apparently burdensome instructions from the dominant company to the subordinate company are justified under certain prescribed requirements and processes. After reviewing the grounds of and criticisms against these approaches, this paper reviews the various cases and expert reports in the European countries. Based on such review, this paper criticizes the first approach and the related Korean court rulings as short-sighted and pointlessly dogmatic ones. This paper argues that, if any act apparently harming a company ultimately serves its interest in the group structure by avoiding greater long-term losses or facilitating greater long-term profits, then such act should be allowed under the second approach. Furthermore, the concept of the group interest should be respected under the third approach if the transaction in question was entered into between the parent company and its wholly owned subsidiary (or its closed subsidiary where no outside shareholder exists). It will help avoid excessive penalization of corporate activities in Korea and also in line with the dominant views in Europe. Group interest, however, should not be invoked to justify affiliate transactions for “tunneling.”