會社分割에 있어 債權者와 少數株主의 保護

Abstract

This essay is an inquiry into problematic issues of the current Commercial Law in consideration of better directions to protect minor stockholders and creditors. In order to protect the assets of shareholders and creditors, the current Commercial Law imposes the provision on a public disclosure of the division information, the approval of corporate divisions granted through a general meeting of stockholders, the joint liability and the nullity of the corporation. In addition, shareholders and creditors are also eligible to be protected under general legislative regulations on rights and privileges. Regarding corporate divisions, it is essential to maintain the overall growth of a corporation and to protect benefits of stockholders and creditors through the corporate divisions. Primarily, it is necessary to clearly define provisional terms, since the Commercial Law does not address elucidatory statements in terms of the corporate divisions. Secondly, minor stockholders should be eligible to acquire all the information on the corporate divisions in advance and to reclaim their investment. It is worth noting that corporate division plans are shown as over-intricate and even incomprehensible; therefore, it seems critical to reasonably simplify terms in order to make these more sensible to the party of a corporation. As a report on corporate divisions is reveled, it should be thoroughly reexamined by an independent outside expert. Consequently, corporate division plans must be considered obligatory, and more detailed plans should be made when interests are widely countered to projected figures. Furthermore, it is reasonable to authorize the right of stock purchasing claims in both cases of divisional affiliations and simple division, as the Commercial Law approves the former only One of the other strategies to protect minor stockholders is to apply for a provisional disposition; however, it is not pragmatic to be sanctioned. As for an impartial pact, it is fundamental for a corporation or a council of its directors to bear the burden of proof. Since it is virtually unfeasible for minor stockholders to retrieve their rights after a contract of corporate divisions comes into effect, their rights need to be secured before the event. thirdly, creditors’ protection becomes an important issue in case that the joint liability as to a scope of its information and timeline is excluded. Concerning the joint liability, it is appropriate to interpret it into Joint and Several liability. Regardless of the acknowledgement of spilt companies, it is reasonable to observe a scope of the joint liability before the establishment of divisional registries, and even in the events of contingent liability and enlarged volume Allowances, creditors are protected under the terms of the joint liability. Besides. in case that a contract of the joint liability is made to be excluded and its relevant information is omitted in a process of corporate divisions, a general rule for creditors’ protection should be applied both to a corporation and its split companies to bear consequences. Only for the creditors without opportunity to present their rights for objection due to the term overdue, however, they should be entitled to retrieve their rights.