상법상 배당가능이익에서미실현이익 공제에 대한 재검토

Abstract

The Korean Commercial Code of 2011 provides for the deduction of unrealized profits in the calculation of distributable profits to shareholders. The main purpose is to prevent excessive dividends payment simply because the market value of the assets increase. The asset value is inevitably fluctuating, and thus the company should save the pennies for a rainy day. In this regard, it is also an expression of conservatism in paying dividends. However, a close examination has not yet been conducted on the question of whether such regulations are prevalent in other advanced jurisdictions. Most corporate laws have similar systems for paying dividend to shareholders, but it is difficult to find legislative precedents that treat unrealized profits asymmetrically in calculating distributable profits. In most countries, the problem of unrealized profits is recognized merely as an accounting question, and even when it becomes a legal problem, it is resolved through court cases. The only countries that seem to have provisions on unrealized profits and losses in corporate law are the UK and Japan. However, ① the UK regulates both unrealized profits and unrealized losses symmetrically, which is far from being categorized as conservatism, and ② Japan eliminated the asymmetric treatment of unrealized profits when the Companies Act of 2005 was enacted. Particularly, no special provisions are * Professor, Seoul National University School of Lawprovided on unrealized profits of marketable financial products. Therefore, it should be closely examined whether the deduction of unrealized profits has reasonable policy grounds.