자기주식 취득의 효력 및 이사의 책임에 관한 연구 - 2021년에 선고된 3건의 대법원 판결을 중심으로 -

Abstract

The Commercial Act amended in 2011 greatly relaxed the regulation on the acquisition of treasury shares. The company was allowed to acquire treasury shares within the limit of profit available for dividends, and if there are particular purposes prescribed by law, treasury shares could be acquired without limitation of dividendable profits. About 10 years have passed since the amended Commercial Act took effect since April 2012, and in the meantime, important Supreme Court rulings have been sentenced in regard to the interpretation of the revised regulations on the acquisition of treasury shares. Therefore, this paper looked at the recent Supreme Court ruling on treasury shares one by one, and examined the interpretation of the changed regulations on treasury shares acquisition changed through the revised Commercial Act in detail. First, in the case of acquiring only the largest shareholder's shares, the violation of the treasury share acquisition procedure prescribed by the Commercial Act is illegal in principle, but it is valid if it provides a fair opportunity to shareholders. Also, it was considered possible to acquire treasury shares within the limit of dividendable profits through loans. Next, in the case of purchasing shares of retired directors, it was judged that the acquisition of treasury shares that did not follow the procedures prescribed in Articles 341 and 341-2 of the Commercial Act was invalid. Finally, even in the case of acquiring treasury stocks for the purpose of retirement of shares, it was considered that the liability for damages of directors was recognized by Article 399 of the Commercial Act if the procedures prescribed by the Act were not observed.