他人名義, 會社計算에 의한 自己株式 取得의 判斷基準에 관한 考察 - 대법원 2011.4.28. 선고 2009다23610 판결을 대상으로 -

Abstract

The general rule stated in old Korean commercial code, section 341(amended in 2011), was that a company must not acquire its own shares, except for the circumstances prescribed in the act. It prohibited for the company to purchase its own shares on own account, both at company's name and at another's name. The new rule in amended commercial code, section 341, fundamentally continues to put restrictions on share repurchases. But it generously permits for the company to repurchase its own shares, provided that the money to repurchase shares comes from distributable profits and existing shareholders are given equitable opportunities to sell his or her shares. The point needed to pay attention to is that new regime only permits share repurchase both on company's account and at company's name in the circumstances mentioned above. It does not refer to share purchases both on company's account and at another's name. It seems that new regime perfectly prohibits share repurchases both on company's account and at another's name. Traditionally, Korean Supreme Court has required two elements for the share purchases by non-company's name to be purchases 'on company's account'. First, the company should give financial assistance to the acquirer. Secondly, benefit and loss from share purchase should solely belong to the company. Even under new regime, the rule declared by Supreme Court would have significant meaning to the practioners, for it would be impossible to acquire shares at a third party's name and on company's account. This article analyses the pros and cons of the law regarding the ‘purchase on company's account, but at a third party's name', bearing in mind logical grounds for restraining share repurchases.