會社分割·分割合倂에 있어서 債權者保護

Abstract

The environment of the domestic and international economy is being changed more rapidly than has ever been. There are two strategies that corporations may take to adjust themselves to the economic environment; one is about a business strategy for adjustment to the market condition and the other about corporate organization strategy to control the internal operation; the latter is very important to increase the corporate efficiency. The inefficient organization may make the corporation lose the ability to adjust to the market, and even more the future of the corporate be threatened. In America the term ‘restructuring’, meaning a vast reformation, has been used since 1980s with the recognition of the importance of corporate organization and it was introduced to Japan and Korea. Restructuring means merger of corporations, corporate division,establishment of the holding corporation and the subsidiary, and effective reorganization of internal work. The Commercial Code of Korea reflected the international trend in the 1998 revised version. The code rules the corporate division system with the name of division and division-merger. Restructuring, on the ground of financial states of corporations and corporate efficiency, is imperative and corporate division will play a great role in restructuring. Corporate division, including the division of the corporate body and the division of positive property and passive property, will affect the positions of stockholders and creditors of the divided corporations. Corporate division is a influential change which makes stakeholder adjust themselves to the new condition when stakeholder, including stockholders and creditors, have predicted the existing conditions and have had the legal relations. It is natural that this change affects the positions of stockholders and creditors. In most cases of division the decision is made by major stockholders, but to protect stockholders' and creditors' profit the opinion of the miner stockholders and creditors should be reflected in the process of making the decision to protect their interest. This thesis aims to search for the ways to prevent the small stockholders and creditors from getting damaged by the division, and through the study to discuss the defects of the code and to suggest the alternatives.