자기주식처분에 대한 규제 - 서울중앙지방법원 2015. 7. 7. 자 2015카합80597 결정 및서울고등법원 2015. 7. 16. 자 2015라20503 결정을 중심으로 -

Abstract

Article 342 of the Korean Commercial Code (as amended in 2011, hereinafter referred to as the “KCC”) provides that where a company intends to dispose of its treasury shares, unless the articles of incorporation provides otherwise, the board of directors should determine (i) the class and number of the shares to be disposed of, (ii) the price of the shares and date of payment, and (iii) persons to whom the shares are to be transferred and the method of the disposition. However, the KCC is silent on any other matters that may possibly regulate the disposal of the treasury shares, including whether the shareholders of the company have the right of preemption on the treasury shares to be disposed of. Since the disposal of the treasury shares has similarities with the issuance of new shares of the company, it has been discussed among scholars whether the KCC’s rules regulating the issuance of new shares(including the shareholders’ preemptive rights) should be applied to the disposal of the treasury shares so as to prevent the potential abuse of the power of the board of directors. However, Korean courts have never applied such rules to the disposal of treasury shares thus far. The recent rulings rendered by Seoul Central District Court on July 7, 2015 (decision number: 2015kahap80597) and Seoul High Court on July 16, 2015 (decision number: 2015ra20503) also disagreed to such application. Given the history of the amendment to the KCC in 2011, where such application was initially included in the draft amendment but later intentionally excluded from the final amendment, such rulings seem to be appropriate. In the above case, the petitioner argued that the company’s disposal of treasury shares was unreasonable in terms of the primary purpose, timing, method, price and the counterparty, and hence, should be regarded to be contrary to the good morals and social order so as to be deemed invalid under Article 103 of the Korean Civil Act. The courts thoroughly reviewed the arguments but rejected them as they believed the disposal was reasonable. The rulings seem to be adequate. However, considering that the courts relatively rarely ruled certain act to be contrary to the good morals and social order so as to be invalid based on Article 103 of the Korean Civil Code, it is not clear whether the courts would hold, in the future cases where the disposal of treasury shares may lack reasonableness in terms of the primary purpose, timing, method, price or the counterparty, that such disposal should be regarded invalid. To analyse this matter, the related rulings in the future should be carefully examined.