판례를 통해 본 주식회사의 분할 및 분할합병

Abstract

Corporate division systems were first introduced in Korea through revision to the Commercial Act in 1998 and since then there have been a wide range of economically-motivated corporate divisions or division-mergers, with a significant body of cases regarding this issue being accumulated. The main goal of this study is to classify and review the various issues to emerge during legal disputes regarding the corporate division or division-merger, and through this to identify trends within court decisions accumulated during the ten years following the introduction of corporate division systems. Accordingly, this study reviews numerous examples of procedures for corporate division or division-merger, the resulting succession of rights and duties, joint and several liability to protect creditors and actions taken to nullify the division of a company, as well as decisions made by the Supreme Court or the trial and appellate courts in regard to these examples. As seen through these decisions, the stance taken by the courts has been to preserve legal stability by interpreting statutes defined under Article 530-2 of the Commercial Act in a manner as faithful as possible to their meaning, while also striving for concrete validity by opting for an interpretational approach in regard to disputable issues. When there are a large number of stakeholders affected by the corporate division or division-merger, it is essential to apply Commercial Act upon strict interpretation of relevant provisions. However, as the Commercial Act includes no specific provisions in regard to regulations pertinent to this issue, a certain amount of interpretation becomes inevitable. When considering that, ultimately, this issue can be solved only by performing systematic and logical analysis when applying pertinent provisions to each individual case, the courts' stance is understandable. While there have been a significantly increasing number of court decisions related to corporate division systems in recent years, the trial and appellate courts fail to present a consistent system of interpretation for each specific issue, thus making it difficult to accept these decisions as a unified interpretation standard. It will be necessary for the Supreme Court, as the court of final instance, to present clear standards and thus establish the definitive stance of the courts. At the same time it will also be necessary to perform interpretation that both promotes the division system as a means of corporate reorganization to improve the efficiency of a company and protects the status of interested parties such as shareholders and creditors at the same time.