자기주식취득의 허용에 따른 법적 쟁점

Abstract

The 2011 revised Commercial Code has alleviated the regulation on the operation of the corporate financing and liberalized the acquisition of treasury stock, in order to enhance the autonomy of business operations. First of all, according to the revised Commercial Code the obtainment of one's own securities has to be carried out by the Presidential Decree,however specifics regarding the method of obtainment is not stated. This paper suggests ways on stock market trading, tender offer, and how a corporation my obtain ownership of one's own stock from shareholders within Decree. Secondly, the 2011 revised Commercial Code does not prescribe the requirements and relevant procedures of the disposal of treasury stock. Therefore, it is assumed that the corporation has the right to freely dispose their treasury stock. However, the disposal procedure requires fairness upon decision of the price and purchaser. Additionally, with a view to enhancing the flexibility of equity financing and maintaining the equity ratios of existing shareholders, the disposing of treasury stock must be conducted on equal basis per share. This paper suggests the warrants in Article 418 to be set up under Article 342(2) of the revised Commercial Code. Finally, the revised Commercial Code states that the treasury stock can be cancelled with only the resolution of the board. While the treasury stock is obtained within available profit for dividends, the revised Commercial Code does not set specific regulations for cases when total treasury stock acquisition exceeds available profit for dividends at the point of disposal or the stock was obtained through capital transactions. Disposal of treasury stock under these two circumstances will have to be regulated by terms of the capital reduction.