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이훈종(Lee HunJong),윤창술(토론자) 한양법학회 2008 漢陽法學 Vol.23 No.-
The Lee Myung-bak administration says it plans to gradually convert the current ex ante regulation on bank ownership to a system of eligibility screening for controlling shareholders and strengthened ex post supervision. There has been some controversy over the government’s such policy of separation of banking and commerce. Those in favor of maintaining the separation of banking and commerce are supporting their arguments with the following. 1. If an affiliated company faces a financial difficulty, it will divert the financial company’s funds to other purposes, and consequently, the financial company will become insolvent. 2. The presence of foreign banks seems to promote the efficiency of domestic banks and also contribute to the advancement of various financial laws, system, and infrastructure. 3. It is not common for global private commercial banks to have an owner, and according to an analysis of U.S., British, Japanese, French, and German banks that are among world’s top 100, higher productivity is generally shown in those with more diversified ownership. 4. In general, productivity of affiliated banks of a business group fails to meet the average of entire financial industry. On the contrary, those in favor of easing the separation of banking and commerce are supporting their arguments with the following. 1. Recent social and political surveillance system and atmosphere makes it impossible for an affiliated company to divert and use the funds indiscriminately. 2. Foreign banks are reluctant to provide loans to smaller domestic companies, and therefore, the regulation of bank ownership should be reformed. 3. The number of countries that regulate the bank’s ownership of commercial capital is relatively small, and after the analysis of actual data, domestic commercial banks that are controlled by controlling shareholders provides more loans to small companies than the other banks that are not controlled by controlling shareholders. 4. Productivity of business groups exceeds that of independent companies. There is also controversy over the efficiency of financial supervision and the pros and cons of increasing the stake in banks by using different types of funds such as national pension or private equity investment firms. The question is whether the Financial Services Commission and Financial Supervisory Service, which have been criticized for their poor supervision, can adequately perform their duties. Recent findings from Samsung investigation raises doubts about whether the Financial Services Commission and Financial Supervisory Service performed their financial supervision duties effectively. Measures to ease the separation of banking and commerce should be prepared only after it is proven that the Financial Services Commission and Financial Supervisory Service can effectively perform their financial supervision duties.
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이병철(Lee, ByoungCheol),윤창술(토론자),손수진(토론자) 한양법학회 2007 漢陽法學 Vol.20 No.-
The corporate social responsibility and business ethics were introduced when laissez-faire economic order exposed its limits and was converted into Keynesian interventionalism in early 20th century due to social conflicts, such as class struggle. The importance was emphasized on a new level in the face of economic environmental changes such as information revolution and globalization. From a business management point of view, as corporate survival and changed environment in management strategy should be accommodated and adapted, corporate ethics have changed from negative to positive, from internal to external and have been expanded and reorganized into global business management. From an economic point of view, corporate social responsibility has been understood within a narrow range based on the thought that a social interest can be effectively accomplished if laissez-faire economics exist, that is, if corporations pursue optimalization. However, even though it is based on market fundamentalism, there is an assumption that the optimalization for profit maximization should be pursued under the condition of legitimacy. As the legitimacy assumed here means legitimacy as a social consensus derived as a result of social public choice on the efficiency and equity of market economy, it can be understood as a result of political public choice and neo-classical economics is not enough to present a persuasive demonstration on it. The 21st century market economic order asks us to present a synthesis and such a historical demand requires a new interpretation of corporate social responsibility. It should be recognized that the new order required by the 21st century capitalism(including Korea) is an accumulation of social capital such as ethics, moral and social responsibility and the key of social capital is ‘trust’ between social members. The ‘trust’ required for social capital by 21st century free market economic order uses active and dynamic social responsibility of corporations as an economic subject, especially, as conglomerates as key materials. In particular, in establishing the range of corporate social responsibility in Korean society, we have to emphasize the principle of legitimacy. Major events where corporate social responsibility was a point at issue in the U.S.A. or Korea happened due to illegal or evasive behavior of conglomerates. So, in establishing the legal standards of this society that are propositions of the legitimacy principle, we have to establish the principle of constitutional law based on a free market economic order that modifies market failure effectively instead of a laissez-faire economic order. For this, the study suggests that we have to review the historical process and theoretical achievements of the German social market economic order and develop interdisciplinary approaches on basic economic order in our economic constitutional law based on all the principles of competitional order presented by W. Eucken and theoretical and positive achievements of modem economics. When an organized system of economic law, financial law and tax law is prepared, the contents of corporate social responsibility on a legal level will be decided.
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