상법상 자기주식의 보유와 처분에 관한 입법론: 자기주식의 본질에 기초하여

Abstract

The economic nature of a corporation’ repurchasing its own shares is a return of capital, so repurchased stocks are worthless. In essence, a repurchased stock is burned and cannot be held or disposed of. However, the legal treatment of repurchased stocks does not necessarily follow the nature of them, as evidenced by various types of legislation. The current Korean Commercial Code also recognizes the concept of “treasury stocks” by allowing corporations to “hold” or “dispose” of repurchased stocks. The main benefit of recognizing the concept of a treasury stock is that it allows corporations to enjoy technical convenience in their financial management. As the current Korean Commercial Code does not fully regulate the treatment and utilization of treasury stocks, however, interpretation theories are divided, and controversial precedents have emerged regarding certain issues. For example, there are criticisms regarding the disposition of treasury stocks to certain persons at the discretion of the board of directors and the allocation of spin-off shares to the treasury stocks of the spin-off corporation in the event of a de-merger. The use of treasury stocks should be permitted to the extent that the main principles of corporate law are not compromised. In this regard, this article proposes the following legislative theories, which are based on the principle that treasury stocks are unissued shares, but relax the principle to the extent necessary for flexible financial management of a corporation as a matter of policy. First, this article proposes to limit the sources of treasury stocks that a corporation can hold for financial management to acquisitions pursuant to Article 341 of the Korean Commercial Code (Acquisition for Dividendable Profits). To this end, a new regulation is proposed to impose a disposition obligation on treasury stocks acquired for a specific purpose pursuant to Article 341(2) of the Korean Commercial Code, and a new regulation is proposed to prohibit situations in which the amount of treasury stocks is increased due to a merger, etc. Second, this article proposes to clarify that the treasury stocks are not entitled to any rights, as well as voting rights. In other words, treasury stocks should be treated as if they do not actually exist while they are in treasury, and as soon as they are disposed of or otherwise removed from the status of treasury stocks, they become newly entitled to shares. In fact, this new regulation alone would resolve a number of important issues related to treasury stocks. Third, the disposition of treasury stocks should be subject to the same regulations as the issuance of new shares, but allowing the sale of treasury stocks through the exchange market same as in the case of the acquisition of treasury stocks. As long as the Korean Commercial Code recognizes a shareholder’s preemptive right to subscribe for new shares, it is reasonable to apply the same regulations to the disposal of treasury stocks, which are essentially the same as the issuance of new shares. However, in view of the ease of disposal, it is preferable to recognize the disposal of treasury stocks on the exchange as in the case of acquisition. The above legislation needs to be considered in relation to other systems. This is because under the current corporate law, treasury stocks are not only used for financial management convenience, but also as a means of defense against management control.