회사분할관련 최근 판례들의 비판적 검토

Abstract

In 1998 the Korean Commercial Code(the “KCC”) adopted provisions for statutory corporate division (Art. 530-2 to 530-12) and the Korean Supreme Court made important decisions on how to interpret those provisions. The author reviewed five Supreme Court Cases made between 2009 and 2011 (2008da96291, 96307; 2009da95769; 2011da38516; 2008da92336; 2008da74963) from an critical angle. The main points of this paper are as follows:(1) Some cases seems to be mistaken in defining the major elements of statutory corporate division. Under the KCC, the transferee company which succeeds the assets and debts of the transferor company should issues new shares in return. The 2008da96291, 96307 and 2009da95769 allowed the transferor company to pay cash in lieu of new shares which is inappropriate interpretation ignoring the plain meaning of the KCC Art. 530-2 and 530-3. (2) Under the Art. 530-9 KCC, the transferor company and transferee company are jointly and severally liable for the debts owed by the transferee company before the statutory division. In order to limit the joint and several liability, the transferee company should include special provision for separate liability in the division prospectus and notify its intention to ‘known creditors.’ The 2011da38516 and 2008da92336 dealt with the notion of know creditors but the Supreme Court acknowledged quite broad range of known creditors which might lead to heavy administrative burdens for the part of transferee company.