동일인 및 기업집단 지정 제도의 법적 평가와 과제 = Legal Appraisal of ʻThe Same-Personʼ and ʻConglomerateʼ Designation System

다국어 초록 (Multilingual Abstract)

So far, the current status and contents of the designation system of ʻthe same personʼ and ʻthe conglomerateʼ have been briefly examined, and the appraisal of these have been attempted in its own way. Monopoly Regulation and Fair Trade Act was a relatively pure competition law when it was enacted in 1980, but it was created as our own unique law in 1986 when we introduced an economic concentration clause referring to the provisions of the conventional Japanese law, and most regulations have become more sophisticated and rich over time, and it is clear that this trend will be a big burden on businesses and conglomerates.
First, in historical aspects, it is worth noting that Japan, which inevitably enacted economic concentration provisions or laws as part of its war responsibility, drastically abolished or deleted parts deemed unnecessary, while maintaining regulations to help companies or conglomerates survive, while boldly and quickly eliminating parts unrelated to competition.
Second, in legal aspects, contrary to the global standards of deregulation of companies in the need for ⅰ) designation, Japan has already abolished or eased parts while recycling and elaborating, which continues to lead to various inconsistencies as seen in the CVC issue or the separation of financial and industrial capital of holding companies, ⅱ) The Constitution infringes on the right to refuse to state statements, freedom of business, and freedom of marriage. ⅲ) Discrimination against companies belonging to designated conglomerates and other companies without reasonable grounds in the fairness of designation is suspected of violating equal rights and forming a paradigm of ʻsmall and medium-sized business and large business.ʼ ⅳ) In terms of the consistency of designation, the failure to define terms such as ʻsame person-related personʼ and ʻspecial personʼ among various laws has prevented easy and unified content from being well communicated to the follower, and it seems that the purpose of the law is different, leading to double and triple regulations with other laws.
Overall, there are many misunderstandings about the history of conglomerate regulation, and it does not seem to fit with global standards as it lacks necessity, considerability, equity, and consistency in the designation of conglomerates. Therefore, our system for designating the same person and conglomerate is not desirable because it does not reflect reality in terms of corporate policy, and it would be better to boldly abolish it as it seems that several unconstitutional disputes are inevitable in terms of law. However, on the premise that the designation system must be maintained, as an intermediate step, the scope of related persons should be readjusted to a reasonable level and regulations on companies belonging to conglomerates should also be boldly reviewed.

참고문헌 (Reference)

1 강상엽, "동일인 지정제도와 자기주식의 취득, 보유 및 처분 : 정성적 기준을 중심으로" 한국경쟁법학회 44 : 224-256, 2021

2 강상엽, "동일인 지정제도에 대한 재검토: 몇 가지 쟁점을 중심으로" 한국상사법학회 42 (42): 102-148, 2023

3 강상엽, "동일인 지정제도: 정량적 기준과 정성적 기준의 비판적 검토" 한국경제법학회 20 (20): 201-234, 2021

4 상공회의소, "동일인 지정제도 개선 건의"

5 황태희, "대기업집단의 동일인 지정제도 개선에 관한 소고" 한국경제법학회 20 (20): 45-64, 2021

6 이봉의, "대기업집단 지정절차 및 제재의 쟁점과 개정안" 2022

7 최난설헌, "대기업집단 지정 기준의 방법론적 검토" 2022

8 신영수, "기업집단의 범위 및 계열회사의 판단기준" 2022

9 서 정, "기업집단의 동일인 확정에 관한 검토" 한국경쟁법학회 43 : 233-259, 2021

10 신영수, "공정거래법령상 기업집단 계열회사의 판단기준" 한국경쟁법학회 47 : 206-237, 2023

11 자유기업원, "공정거래법 시행령 동일인관련자 범위 여전히 모호"

12 전찬수, "‘동일인’ 관련 제도의 개선방안에 대한 연구" 법학연구소 12 (12): 67-97, 2022

13 공정위, "2023년도 공시대상기업집단 82개 지정"