중소기업의 원활한 사업승계를 위한 방안 - 2011년 개정상법 및 개정신탁법을 중심으로 -

Abstract

This Study has reviewed business succession methods of small company:multi-class share structure and trust structure, both of which are employed for smooth succession. To use multi-class share structure is very effective. However, in Korea, as there exist only a few multi-class shares, and as even those shares have not been considered being used as a tool for business succession, business succession based on multi-class share structure is significantly limited. On the other hand, trust structure enables the business succession to be done more simply. In terms of the establishment of trust, self-settled trust only requires the self-declaration of trust, and for other trust structures,trust agreement with trustee is sufficient. Also, with respect to the company’s decision, the successor, as a beneficiary status, can actively intervene with the company, e.g. by instructing the trustee to execute its voting right. Finally, trust agreement is valid even though the settlor(business manager) is deceased. Accordingly, the trust structure has a lots more advantages than the multi-class share structure as a method of business succession. However,there are some huddles to use the trust structure for business succession as its relationship with other positive laws such as the Commercial Law, the Civil Law and the Tax law. This Study suggests recommendations to remove possible barriers under the Commercial Law and the Capital Markets Act when multi-class share structure and trust structure are used for business succession.