配當財源規制에 대한 法的 考察

Abstract

Our Commercial Code has had strict Dividend Financial Resources Regulation for creditor protection. A company is eligible to have a profit dividend within the capital or deducted a certain amount from net assets on the balance sheet. A company creditor has the right to ask for the return of any illegal dividend to the company. In this case, a stockholder has to return unjust enrichment to the company regardless of good or bad intention. A company creditor can also impose liability of reparation on directors who are involved in an illegal dividend. Our commercial code is based on original cost in valuing net assets, that is in accordance with the standard of Dividend Financial Resources Regulation for creditor protection. However, it is not clear if a dividend in kind is acceptable as profit dividend pattern besides cash. Today, the capital system including the Dividend financial Resources Regulation has lost its function for creditor protection. It could be a solution to make Dividend Financial Resources Regulation easier that is shown in the case of foreign countries. For instance, the capital system can use capital surplus reserve as Dividend Financial Resources Regulation by easing the legal reserve. A stockholder with good faith has to be exempted from the duty of returning illegal dividend back to company. It is necessary to have more specific extent to divide those who are involved in an illegal dividend. Unrealized holding gains and losses should be included in Dividend Financial Resources according to corporate accounting rules. Besides, stock that can be marked on the balance sheet should be acceptable as dividend in kind. This can be seen as an investment in kind for corporate restructuring and financial affairs structure improvement.