변화하는 자본금제도에 대한 소고

Abstract

Legal capital, defined as the sum of par values of all issued and outstanding shares or the amount of a half or more of the share issuance price and equal to the total sum of amount which the board of directors agrees to include in the capital, has been expected to act as the normative criteria preventing unlawful funds leakage to shareholders and protect creditors. It is criticized, however, that it neither functions as the measure of corporate credit nor provides enough protection to creditors. In many countries, legal capital system is abolished or is being discussed for reform. Recently Korean Commercial Act was revised to reflect arguments on legal capital system. Minimum capital requirement was removed and no-par stock has been adopted, which means that minimum capital level, needed to prevent corporate asset from unlawfully repaid to shareholders, is relieved. The possibility that corporate asset might be unlawfully drained has been expanded because acquisition of treasury stock using distributable profit and reduction of reserve funds was allowed. Now corporations can use capital reserve before profit reserve for recovery from a deficit in capital and capitalization of reserves. And they can decrease reserves and use them for dividends, which means they can actually use capital reserve for dividends. To some degree, these changes are reflections of criticism against legal capital system. But the Commercial Act does not entirely deny the system because they have not yet found its substitute. Although the weight of legal capital system is shrinking, it does not mean that there is no need to block unlawful corporate asset leakage. Discussions to search for substitute of legal capital system to function as the criteria of reasonable internal reserve are requested.