회사분할에서의 사적자치와 그 허용범위

Abstract

In order to facilitate the corporate restructuring through corporate division, it is required to remove unnecessary restrictions on corporate division and to promote the private autonomy in the corporate division. The restrictions on corporate division is mainly for the protection of stakeholders like creditors or shareholders. So in cases where the necessity of stakeholder protection doesn't need to be emphasized, it is desirable to minimize the restrictions. This paper examines the necessity of stakeholder protection and seeks the methods for expanding the flexibility within acceptable limit from the perspective of the division plan and creditor protection. Regarding the division plan, the overview of interpretations and cases on major items related to the flexibility of corporate division is provided and the methods for expanding the flexibility are reviewed. Regarding the creditor protection, the purpose of creditor protection and the current system are examined and the cases where there is no necessity of creditor protection are sorted out. Then this paper proposes the way to to limit the application of creditor protection under the current law or the legislative necessity of it on the basis of the equity between the stakeholders and the balance between the methods of restructuring.