이슬람 법권역에서 서구식 기업의 활동에 관한 연구 - 기업의 자금조달 및 운용을 중심으로 -

This study attempts to define how the western corporation can operate under Islamic law zone, especially financing the corporation, discussing interest implications of share dividends, bond owner’s rights and intra-company financing. Since Islamic law does not recognize a corporation as an entity, namely a fictitious person, the corporation has no specific rights or obligations. But Islamic corporate governance has to use Islamic legal theories that apply to individuals and superimpose that on the corporate practices and corporate officers. While a company located in Islamic legal zone has to aware all Islamic prohibitions, the most concern to company financing is the prohibition against riba (interest). Riba is implicated in preferred stock as well as some common stocks, which usually guarantee a fixed dividend payment per share which doses not fluctuate based on earnings or business performance. These dividend-as-interest concerns can be solved when a corporation never define a set dividend, especially during periods of relatively constant revenues. Since the structure of a bond violates the prohibition against riba, the number of Islamic Bonds, known as Sukuks, has been invented and used in the past years. However, a Sukuk owner has no corporate democratic rights just like a stock owner. This problem can be solved by creating basic uniform rules which address a alternative financing agreements like Sukuks. An inter-company loan, like a interest bearing loan between a parent corporation and a wholly owned subsidiary, can be a matter under Sharia viewpoint. That is, is it a loan or a legal and accounting fiction? It is the best advice for the company to get an Islamic legal opinion. To monitor whether the corporation is engaging in haram or Islamic prohibited activities, the Sharia auditing structure, for example Sharia Supervisory Board, need to be implemented as part of a management control mechanism. Through this study, a traditional western corporation can find out to what extent they will need to change in order to comport with Sharia. Such compliance will allow the western corporation to operate more effectively in countries with Islamic legal systems, to better source capital, and to enable better cross-cultural cooperation and understanding.