상법상 주식양도 제한에 대한 비판적 고찰

Abstract

Under the Korean Commercial Code, the freedom of transfer of shares are protected in principle. However, as exceptions of freedom of transfer of shares, restrictions on transfer of shares are provided specifically. Those are restriction on subscription rights, restriction before issuing certificate of shares, restriction on purchasing its own shares, restriction on purchasing parent companies’ shares by the subsidiary, and restriction by the articles of incorporation. Each of the restriction of transfer of shares has its own purpose. To review the reasonableness of such provision, it need to evaluate whether the current provisions of such restrictions is suitable to achieve such purposes. If it is unreasonable to restrict certain type of transfer of shares, such restriction need to be changed or removed. This article reviews each type of share transfer restrictions under the Korean Commercial Code. Restriction on transfer of shares when it is subscription rights or before issuing certificate of shares need to be removed from the Korean Commercial Code, since those are used to abuse the restrictions by the transferor against the transferee in practice as well as most countries do not restrict such transfer. It is also against the practices of transfer of such rights and shares. Restriction on purchasing its own shares and restriction on purchasing parent companies’ shares by the subsidiary need to be much more flexible as Model Business Corporation Law in the U.S. As long as there would be no insolvency and total assets of the corporation is more than the total liabilities, the interests of the creditors or shareholders will be protected. Current Korean code differentiate between purchasing its own shares and purchasing parent company’s shares by the subsidiary. However, such differentiation need be removed since there is no reasonable ground to maintain it. Restriction by the articles of incorporation are very strict under the Korean Commercial Code, since it allows only one method such as the prior approval by the board of directors. The U.S. Model Business Corporation Law does not restrict the purpose of such restriction as well as methods of such restriction. In the U.S., shareholders can restrict the transfer by the articles of incorporation or by the agreement according to their needs. Furthermore, there is no reason to allow only one method of restriction by the approval of the board and disallow other type of restrictions by providing in the articles of incorporation. Thus the restriction by the articles of incorporation in Korean Commercial Code need to be constructed as allowing that other type of restrictions can be provided in the articles of incorporation as voluntary provisions, if it is not against the fundamental principle of corporation and shares. If such construction is not allowed because of the specific wording of current code, it need to be amended according the example of U.S. Model law.