자본제도의 개정방향 : 2008년 상법개정안을 중심으로

Abstract

The traditional legal capital regime, which was originally designed to resolve the conflict of interests between shareholders and creditors, has been re-examined recently in Korea, and this paper tries to address several issues relating to such moves. Many commentators argued that traditional legal capital requirement is no longer able to protect creditors, and sometimes is likely to prevent companies from raising and allocating fund efficiently. Although it is still valid proposition that some level of equity cushion should be maintained for the purpose of creditor protection, several specific elements of legal capital regime in Korea were changed in recent draft of Commercial Code. (1) Former Commercial Code requires at least 50 million KW for incorporation of companies, but such minimum capital requirement was repealed on May 2009. This is the only provision that was actually enacted from the draft. (2) The draft introduces no-par stock. Companies are allowed to choose in their articles the type of stock, and the legal capital should be stated at least a half of issuing price of shares if no-par stock was chosen. (3) The appraisal process by auditors in case of in-kind contribution was relaxed, so that the securities traded in capital market and buildings or lands of which the price was released periodically by the governmental institutions, may be no longer subject to such appraisal process. (4) Debt-equity swap was allowed for solvent firms. (5) The companies are allowed to return the capital reserves by using the process of reducing such reserves. The draft, which were originally made in 2006, is still pending in the Congress, and no body is optimistic to believe that the draft will be passed in the near future. This should be criticized because several reforms stated above relating to legal capital regime is never revolutionary but just adoption of international or modern trends in corporate law.