공공기관 지정 및 운영과 WTO 보조금협정

This paper aims at analysing whether financial contribution made by Korea Development Bank (“KDB”) and Korea Export-Import Bank (“KEIB”) to troubling companies may constitute violation of the WTO Agreement on Subsidies and Countervailing Measures (“WTO Subsidies Agreement”). The scope of the analysis is focused on whether and to what extent the underlying domestic statues that enabled establishment of those two banks contributed to violations of the WTO Subsidies Agreement. In particular, this paper examines whether KDB and KEIM fall under the definition of “public bodies” within the meaning of Article 1 of the WTO Subsidies Agreement. After conducting such analysis, this paper proposes some legislative changes so as to minimize such risks of exposure to WTO challenges. This analysis is applicable not only to KDB and KEIM, but also useful to other publicly-owned financial institutions under similar circumstances. More specifically, this paper examines whether and to what extent a designation of KDB and KEB as the Public Corporation and the Semi-Public Institution under the relevant law has an impact on the legal nature of such banks as “Public Bodies” within the meaning of Article 1 of the WTO Subsidies Agreement. It is concluded that such a designation would create no meaningful impact. On another matter, this paper scrutinizes whether KDB and KEB can be classified as the “Public Bodies” due to the several provisions under the relevant laws establishing those banks, and reaches the positive conclusion. In this connection, this paper suggests how those provisions should be amended to minimize that risk. In addition, this paper ends with an emphasis that, even with the amendment to the laws as above, the structural remedy loans by KDB or KEB should be provided in a way that those loans would be non-specific and in accordance with the market principles so as to avoid causing economic benefits to the recipients.