통일 후 북한 기업 사유화에 관한 상사법적 검토 - 우리나라 귀속기업체 및 구동독 기업의 처리과정에 대한 역사적 고찰을 중심으로 -

In this article, I reviewed, from the commercial law's perspective, how North Korean state-owned enterprises would change their organizational structure and who would become their owners once they are governed by South Korean law due to the reunification of Korea. The previous studies approached this issue by conducting a comparative legal analysis of the democratic transition history of various socialist countries such as East Germany. However, in this article, I attempted to find a privatization method more fit for Korea by reviewing the privatization process of Japanese state-owned enterprises after Korea's liberation from Japanese colonial rule. After liberation, two different types of privatization were considered. One was MBO(Management Buy-Out), which provided a preemption preference to the manager of target company, and the other was EBO(Employee Buy-Out), which provided a preemption preference to employee stockholders association. In the end, the MBO method was accepted in the main, and the privatization process was carried out through MBO. Meanwhile, Civic activists of East Germany insisted that East German state-owned enterprises should be given to East German people and not be sold to investors in West Germany or the western world. Nonetheless, the highest priority of the Treuhandanstalt was prompt privatization. The Treuhandanstalt privatized large companies by splitting them up and selling them publicly, and small companies by selling them through the MBO method. Privatization was completed in only 4-5 years. First of all, the organizational transition of North Korean enterprises must precede privatization according to South Korean commercial law. However, as there is no rule in South Korean commercial law regarding the organizational transition between different types of companies, it is desirable that a special legislation be passed to govern such corporate transformations. If the organizational structure is to change through such a special law, enterprises in transition must be legally acknowledged as a 'temporary entity' so that they may carry out the privatization process effectively until they acquire a 'final entity'. It is also important to discuss who will acquire the ownership of the enterprises once their transformation is completed, and through what process this will be done. According to the size of the enterprise, small companies can be sold by MBO and large-scale companies can be sold by the public sale process after division or normalization of management . The privatization of North Korean enterprises is a major problem that we must resolve after Reunification. It is absolutely necessary to continue the ongoing research efforts to map out a specific plan and arrange concrete, detailed rules for operation based on our Constitutional values.