정관에 의한 주식양도제한 제도 개선에 관한 입법론- 주식매수청구권의 인정 여부를 중심으로 -

Abstract

Under Korean Commercial Code (KCC), any company can restrict the transfer of its shares by requiring the board approval on its transfer through providing for such provision in the Articles of Association (§ 335 (1)). Under the same provision of KCC, if the board refuses to give approval on the transfer of shares, the shareholder who intends to sell its shares may exercise his/her appraisal right to the company (§335-2 (4)). However, the limitation of acquiring treasury stock to distributable income under the KCC does not apply to the purchase of shares by the company through the exercise of such appraisal right. The current KCC position weighs more on the free transferability of the shares over protection of interests of other shareholders or corporate creditors. The author views that more balanced approach is needed, and in this paper, the author suggests a proposed amendment of the KCC on the share transfer restrictions for such balanced approach. Firstly, the author proposes that while permitting the appraisal right by the person whose intended share transfer is refused by the company, the purchase of shares by the company should be approved by the shareholders’ meeting and such purchase should be limited to the amount of distributable income. Secondly, the author proposes the diversification of corporate organizations for approval of share transfer by including approval by the shareholder's meeting or the representative director(s), in addition to the approval by the board.