자기주식취득과 자금지원행위

Abstract

In accordance with Section 134 of the previous commercial code, any corporation shall not get a treasury stock on its own account. With respect to a financial assistance to get such treasury, our Supreme Court has interpreted that if there is a funding raised by a corporation and if profit and loss due to such acquisition(or subscription) is attributed to such corporation, such financial assistance shall considered as getting a treasury stock. Thus it finds that such transaction shall be void and null. In spite of constant conclusion of the court, application to a case has never been that clear. Moremore, new commercial code amended in 2011 allows some treasury stock transaction on certain conditions. I think more precise analysis on financial assistance is necessary under this new rule. For this, I review all the relevant court cases and findings thereon. I also study on purposes of restriction on treasury stock to look at application of this new rule. I think financial assistance is not considered as a legal treasury stock acquisition given the current rule requires the company to get such stock in its own name. Funding requirement is interpreted as the case where the company gets loss due to such fund raising. Finally, profit-loss condition is to regarded as "AND" condition because the most similar case to a treasury stock is to be regulated as a treasury stock rule.