상법상 물적분할제도의 쟁점 및 입법적 개선방안

Abstract

This article is originated from the critical mind that the article 530-12 of Commercial Code of Korea(hereinafter, ‘CCK’) is unclear in its contents because it is regulating the corporate hive-down by entire citing the articles of corporate division. To improve the foregoing article, author reviewed the legislation of hive-down by major countries. And as the next step the author examined the interpretative and legislative issues on hive-down. They go as follows: First, the article regulates literally that hive-down by acquisition is not allowed. Hence the active transactions are hindered. Second, if hive-down by acquisition were to be regulated in the article, the inspection procedure for the contribution in kind should be skipped. Third, regarding the creditor protection procedure there is an assertion that the procedure should be skipped in hive-down by the simple formation of new company. But the author concludes that the procedure is needed in every form of hive-down. Fourth, current CCK denies the appraisal right by a shareholders on hive-down by the simple formation of new company. However such a transaction has crucial meaning on shareholders as the merger and hive-down by acquisition have. Therefore the appraisal right should be granted on such a transaction. Also the author suggests the legislative proposal which reflects on the foregoing issues.