자기주식과 기업의 합병, 분할

Abstract

Since the reform of Securities Exchange Act in 1994, Korean listed companies have been allowed to repurchase their own stocks as far as there is distributable surplus. In 2005, treasury stocks held by listed company amounted to around 5% of market capitalization. The issue that how a company should treat those treasury stocks in a merger or a spin-off, however, has not been fully discussed. Now that it is controversial to define the characteristics of a treasury stock, this paper assume two countries with different approach. According to one country　s legislation (type 1 legislation), a treasury stock is regarded as an illusion: being a treasury stock, it does not count in terms of accounting; selling a treasury stock in the market is subject to the same regulation as new stock issuing. Under the other country　s legislation (type 2 legislation), a treasury stock is regarded as an asset: sale and purchase of treasury stock may create taxable income; selling a treasury stock is subject to ordinary selling process of an asset. This paper reviewed four merger cases where the status of treasury stocks is concerned: (i) target company has treasury shares; (ii) acquiring company has shares of target company; (iii) target company has shares of acquiring company; and (iv) acquiring company has treasury shares. The two main questions are ① whether new shares of acquiring company should be issued to acquiring company in return for target company　s share in (i) & (ii) and ② whether acquiring company could succeed shares of acquiring company held by target company in (iii). This paper showed that under type 2 legislation new shares should not be issued and shares of acquiring company should not be succeeded, while under type 1 legislation such strict regulation might not be required. This paper suggested that it　s wise to introduce strick regulation because Korean Commercial Code is located somewhere between type 1 legislation and type 2 legislation. Further, this paper explored well-known form of spin-off. Many spin-off transactions have been made under which a company with treasury stock spun-off a business section and distributed shares of newly-separated entity to its shareholders according to their shareholdings. The issue here is whether shares of new entity should be distributed even to spun-off company just because it holds its own shares. This paper showed that, as opposed to current practice, such an distribution should not be allowed whether a country assumes type 1 legislation or a type 2 legislation.