공정거래법 사익편취 규제: 찬반양론에 대한 비판 및 제언 -상법과 공정거래법의 접점, 통섭과 공조의 필요성 -

This paper analyzes the existing theories in academia with respect to the Paragraph (1) of the Article 23-2(hereinafter, the “Regulation”) of the Korean Fair Trade Law(hereinafter, the “KFTL”). There are two different views which criticizes or supports the Regulation. Those views have critical defects in common in that they had made in a wrong way the “problem definition.” More specifically, they characterize the issue as the “the problem of supporting the controlling person”, notwithstanding that the real problem lies in the controlling person’s abuse. As a result, the current discussions are departing from the nature of the problem and seem to fail in achieving the goal. In order to fix this problem, two measures have to be taken. Firstly, Corporate Account Standard, which means that the corporate fiduciary duty covers only the corporate account, should be changed to also cover the shareholders’ proportionate interests as well. Secondly, the purpose of the Regulation need to be reset and how to cooperate with Korean Commercial Code(hereinafter, “KCC”) should be discussed. The author also criticizes the recent policies those have been taken by the Korean Fair Trade Commission(hereinafter, the “KFTC”) for the serious side effects, so called “ballon effect”, suggesting that KFTC should take more synthetic and interdisciplinary approaches in cooperation with the Korean Ministry of Justice and the KCC.