중소기업의 원활한 사업승계를 위한 방안 : 2011년 개정상법 및 개정신탁법을 중심으로

권종호(Jong-ho Kwon) 한국비교사법학회 2011 비교사법 Vol.18 No.4

This Study has reviewed business succession methods of small company: multi-class share structure and trust structure, both of which are employed for smooth succession. To use multi-class share structure is very effective. However, in Korea, as there exist only a few multi-class shares, and as even those shares have not been considered being used as a tool for business succession, business succession based on multi-class share structure is significantly limited. On the other hand, trust structure enables the business succession to be done more simply. In terms of the establishment of trust, self-settled trust only requires the self-declaration of trust, and for other trust structures, trust agreement with trustee is sufficient. Also, with respect to the company's decision, the successor, as a beneficiary status, can actively intervene with the company, e.g. by instructing the trustee to execute its voting right. Finally, trust agreement is valid even though the settlor(business manager) is deceased. Accordingly, the trust structure has a lots more advantages than the multi-class share structure as a method of business succession. However, there are some huddles to use the trust structure for business succession as its relationship with other positive laws such as the Commercial Law, the Civil Law and the Tax law. This Study suggests recommendations to remove possible barriers under the Commercial Law and the Capital Markets Act when multi-class share structure and trust structure are used for business succession.

일본 상사법의 개별입법화 동향

權鍾浩(Jong-Ho Kwon) 한국기업법학회 2009 企業法硏究 Vol.23 No.4

In Japan, for approximately one hundred years, the Commercial Code(CC) and several related statutes had governed businesses that were incorporated in Japan. In 2005, these dispersed rules were restructured under single new Companies Act(CA) after considerable revision. These new code came into effect on 1 May 2006. With slight revisions, the CC remains in effect as a statute that lists the basic rules for businessmen and business transactions. Explaining in detail on structures of new CC, the first chapter is rules concerning general provisions, the second chapter is commercial act of businessmen, and the third chapter is marine commerce. Rules concerning Insurance were stipulated in the third chapter of the old CC for approximately one hundred years were also revised in 2008 and restructured under single new Insurance Act(IC) with considerable revision. The new CA reflects numerous amendments made to CC over the years. and captures the results of historical developments in Japan. The CA today thus is estimated to have its own, somewhat unique landscape. In Korea, whether rules concerning corporations in Korean Commercial Code(KCC) should be restructured to the single new Company Act is has been much debted. I think that these debates have one thing in common: KCC does not correspond to business needs. KCC therefore must be revised to satisfy business needs as soon as possible. However. the important is not formation(making KCC single new CA) but the substance of rules in KCC.

2011년 개정상법상의 집행임원제도의 의의와 과제

권종호(Kwon, Jong Ho) 한국증권법학회 2011 증권법연구 Vol.12 No.2

집행임원제도는 업무집행과 감독을 분리하기 위한 수단이며, 그 궁극적인 목적은 말할 필요도 없이 업무집행의 효율화를 통한 경영성과의 향상에 있다. 금번의 개정이 이러한 입법취지에 충실하였는지는 논자에 따라 다양한 의견이 있을 수 있겠지만, 적어도 ① 집행임원제도의 도입에 관해 회사의 자율성을 인정한 점, ② 집행임원제도의 기능 중 업무집행의 효율성 제고 기능을 중시한 점, ③ 집행임원제도의 성공적인 정착을 위하여 실무계의 우려를 불식하려고 노력한 점은 높이 평가할 수 있을 것이다. 다만, 개정법의 구체적인 내용에 있어서는 입법취지에 부합하지 않는 점도 있는데 중요한 사항을 중심으로 간단히 재론하면 (i) 집행임원의 이사겸임허용 및 허용한도에 대해서는 명문규정을 둘 필요가 있으며, (ii) 집행임원의 해임의 경우에는 정당한 이유 없이 해임한 때의 손해배상제도 및 주주의 해임청구권에 대해 명문으로 인정하는 규정을 두는 것이 타당하며, (iii) 집행임원에 대한 위임금지사항 중 이사회의 권한에 관한 상법 제391조 제1항 소정의 사항은 이사회가 집행임원에 위임할 수 있도록 하는 것이 집행임원제도의 취지에 부합하고, (iv) 집행임원의 임기의 경우에는 이사와 동일하게 최장 3년을 초과하지 못하도록 상한(cap)을 씌우는 것이 합리적이라고 본다. 그리고 집행임원제도의 실효성 확보를 위한 향후 과제로서는 기업의 특성이나 다양성 등을 고려하지 않은 채, 기업규모를 기준으로 획일적으로 특정 지배구조를 법률로써 강제하는 것은 결코 바람직하지 않기 때문에 기업지배구조에 대한 선택은 기업규모에 관계 없이 기업의 자율에 맡기되, 집행임원설치회사의 경우에는 이사회를 사외이사 중심으로 구성하는 등의 방식으로 업무집행에 대한 감독은 사외이사 중심으로 이루어지는 시스템을 확보할 필요가 있다고 본다. On discussion of corporate governance reformation in Korea, it was mainly focused an audit system so far. However, on the debate to the officer is only focused on improvement of BoD (Board of Director) system, it means that it was totally different from the previous discussion. The officer system is a measure to separate business execution and supervision and the main purpose of segregation is to enhance management performance via business execution efficiency. Though this revision has lots of opinions on whether it has been expressed well on the purpose of legislation. But at least, ⅰ) For company"s autonomy, Introduction of officer system is admitted, ⅱ) One of the function of officer system, it was focused on efficiency of the business execution performance and ⅲ) it can be highly appraisal on trying to do successfully to implement officer system though there were criticisms from industry. However there are some points which not to reflect aims of this revision properly, see the below summary. ⅰ) It needs to make provision regarding dual position for officer and a tolerance limit. ⅱ) In case of officer"s dismissal, it can be propriety that compensation policy for damage without any proper reason and the right to demand dismissal by shareholders are needed to make provision. ⅲ) The article 1, 391 of Commercial law regarding authority of BoD can be entrusted to officer rather than BoD. ⅳ) In case of officer"s term, it needs to be limited within three years which the director has the same term. For the future to ensure efficiency of officer system, it is not good to enforce specific governance based on size of corporate uniformly not considering nature and diversity of company. Therefore on selection of corporate governance is to entrust with self-control of company regardless of size and in case of having officer in the company, it needs to ensure that Board of Director needs to be membered by outside director so that on the supervision of business execution will be done by the outside director mainly.

자동차 차체 패널의 점용접 및 플러그용접 특성에 대한 실험적 분석

권종호(Jongho Kwon),김장훈(Janghoon Kim),이용우(Yongwoo Lee) 한국자동차공학회 2016 한국 자동차공학회논문집 Vol.24 No.6

현행법상 M&A활성화의 법적 장애와 국내기업역차별제도

권종호(Jong-Ho Kwon) 한국비교사법학회 2005 비교사법 Vol.12 No.3

This Article discusses the way which facilitate M&A and theorize on the improvement of discrimination in domestic corporation. M&A have become indispensible tools in building a new generation of companies with the power and resources to compete on a global basis. While M&A have actually been around since the 1980s, They have in recent years dramatically transformed and redefined the business landscape. When done for the right reasons and in the right way, M&A can indeed be beneficial. They can increase overall efficiency and profitability in our economy by creating new value in the combined companies. The merged entities themselves stand to reap significant rewards in terms of more efficient production enhanced market coverage, technological advances, and better use of physical resources. Unfortunately, M&A have gotten a bad name as a result of the increasing prominence of corporate riders and hostile takeover attempts. Sometimes referred to as takeover artists, the raiders were in truth speculators whose activities were aimed not at building stronger, more efficiently managed companies, as they proclaimed, but at making mountains of quick money for themselves by breaking up and liquidating companies. Therefore we should activate good M&A, but permit target company managers to resist bad M&A.

선제적 사업재편 지원법으로서 기활법의 역할 강화방안 -기활법의 제도적 문제점 및 사업재편 활성화를 위한 개선과제-

권종호 ( Kwon Jong-ho ) 건국대학교 법학연구소 2021 一鑑法學 Vol.0 No.48

기업활력제고를 위한 특별법(기활법)이 개정되어 2019년 11월 13일부터 전면적으로 시행되고 있다. 개정법은 적용범위를 확대하고, 지원제도를 보완하는 등 기활법의 문제점를 개선하기 위하여 많은 노력을 기울였지만, 기활법이 안고 있는 본질적인 문제에 대해서는 전혀 개선되지 않음으로써 종래부터 지적되어 왔던 문제점은 여전히 과제로 남겨두고 있다. 그리하여 본고에서는 선제적 사업재편을 지원하는 법률로써 기활법이 제 역할을 다하기 위하여 필요한 사항으로서 현행 기활법의 문제점, 즉 협소한 적용범위를 확대하고, 엄격한 적용요건을 완화하며, 중견기업이나 대기업의 진입을 가로막는 과잉공급업종요건을 폐지하고, 그리고 민간자본의 참여를 이끌어 낼 수 있는 제도를 마련하는 것을 제시하는 한편, 시급히 보완되어야 할 사항으로 사후설립에 대한 특례신설, 종류주식의 다양화 및 사업 재편 PEF의 창설을 제안하였다. 본고에서 제안하는 제도들은 오래전부터 재계가 도입을 강력히 원해 왔던 것이고, 우리와 경쟁하고 있는 국가에서는 대부분이 도입하고 있는 제도들이다. 이런 제도들을 일반법이 아니라 특별법 그것도 한시법에서 도입하는 것에 대해 주저해서는 안되는 이유는 글로벌 스탠다드를 이야기하면서 도입을 강력히 추진하고 있는 공정경제 3법에 대한 시장의 불만을 해소하고, 이들 법이 갖는 경직성과 획일성을 보완하고 완화하는 데에도 일정부분 기여할 수 있기 때문이다. 그리고 지금은 코로나19라는 미증유의 사태를 맞이하고 있고 뉴노멀의 새로운 질서가 형성되고 있는 시기이다. 산업정책 뿐만 아니라 입법정책에 있어서도 혁신과 새로운 발상이 필요한 시기이다. The Special Act on the Corporate Revitalization(SACR) has been revised and has been in force since November 13, 2019. Although the revised law has made great efforts to improve the problems of SACR, such as expanding the scope of application and supplementing the support system, the problems that have been pointed out from the past remain challenges. Therefore, as a law to support preemptive business reorganization, this article proposes to establish a system that can expand the scope of SACR application, ease strict application requirements, and induce private capital participation. The systems proposed by this articlel have long been strongly wanted by the business community, and most of them are being introduced in countries competing with us. We should not hesitate to introduce these systems in SACR. because it can partially contribute to resolving the market’s dissatisfaction with the three fair economy laws. And now is the time when the new order of New Normal is being formed, facing the unprecedented outbreak of Covid-19. It is time for innovation and new ideas not only in industrial policy but also in legislative policy.

일본의 투자신탁제도(CIS)

권종호(Jong-Ho Kwon) 한국증권법학회 2007 증권법연구 Vol.8 No.1

신탁법제와 유동화법제 관련 최근 쟁점 지적재산권신탁의 한계와 활성화 방안 -일본신탁업법상의 제도와 비교를 통하여-

권종호 ( Jong Ho Kwon ) 건국대학교 법학연구소 2014 一鑑法學 Vol.0 No.28

This article is to discuss “Corporate Group Trust” which is to effectively manage the intellectual property of corporate group and “TLO Trust” which is to transfer technology. In case of intellectual property trust, delegation of some of trust affairs to third parties may need to be allowed to meet with the trustor’s interests and also to activate intellectual property trust. Such cases would be where the trustee of Corporate Group Trust and TLO Trust for transfer of technology discussed in this article is a licensed trustee business entity. However, the Capital Markets Act prohibits trustee to delegate trust affairs to third parties. Accordingly, it is necessary to amend the Capital Markets Act to allow delegation of trust administration to third parties (i.e. outsourcing). Korea has not adopted Corporate Group Trust system. Corporate Group Trust system has a distinctive character from other ordinary trusts that trustor, trustee and beneficiary are all within the same corporate group. This type of trust does not need to mandate strict entry requirements or conduct regulations on trustee. Considering this, it would be important to lower entry requirements and conduct regulations on trustee so that corporate group can manage intellectual properties owned by its affiliates more efficiently, not only for a particular corporate group but also for Korea to enhance its national competitiveness. For TLO Trust, whereas the government supports superior ones among technologies entrusted to technology trust management organization with a part of expenses to protect the rights such as patent fees, there is no such support for technologies entrusted to trustee. If technology has been entrusted with the same purpose and is also superior one, differentiating governmental incentive depending on who is trustee, let alone regulatory arbitrage, may have issues of equal treatment. Therefore, even if trustee is a licensed trust business entity, it shall be provided with incentives same with the case where the trustee is the technology trust management organization, which will also contribute the activation of intellectual property trust.

적대적 M&A 방어수단의 도입 필요성 -2008년 경영권방어법제 개선위원회의 입법초안을 중심으로-

권종호 ( Jong Ho Kwon ) 한국상사판례학회 2009 상사판례연구 Vol.22 No.4

기업지배구조의 획일화

권종호(Jong-Ho kwon) 한국기업법학회 2013 企業法硏究 Vol.27 No.2

The executive officer system has been introduced by the Commercial Law revised in 2011. This system has several characteristics, as follows. First, whether to implement the system depends on the company’s discretion. Second, the executive officer is responsible for the business execution, and the board of directors has the authority to elect and discharge of the executive officer, and to supervise their business execution as well. Therefore, for a company having the executive officer system, the executive officer is responsible for running the company, and the board of directors mainly takes a role of supervisory function. Recently there is a trend to mandate the executive officer system to be implemented to listed companies. This article is a study that the mandatory implementation of the executive officer system by law is not recommendable because: 1) the executive officer system, as a typical business execution body, has not been mandatorily implemented by law in the United States or Japan; 2) considering complexity and diversity of business execution, it is highly recommended to give discretion to companies as to its implementation. The board of directors of listed companies in Korea mainly consists of outside directors. If the implementation of executive officer system is mandated by law, the outside directors will eventually elect the executive officers responsible for running the company. Accordingly, apart from quasi-public finance institutions such as banks, it is not proper to require by law that outside directors appoint the executive officer even for private companies.