가업승계를 위한 주식신탁의 법적 쟁점에 관한 소고 - 회사법과 자본시장법 측면에서의 검토를 중심으로 -

Abstract

The growth and development of SMEs is directly affected by the founder's competency, and this capability of the founder is exerted on the premise of dominance over the company. In SMEs, it is common for control to be concentrated on one founder or a small number of key members for a considerable period of time after establishment. One of the advantages of establishing a company is that it can be managed while maintaining the company permanently regardless of changes in the shareholder composition. However, SMEs often do not properly separate ownership and management, and tend to rely heavily on the capabilities of the CEO, who is the founder and controlling shareholder. If the controlling shareholder of a small and medium-sized company changes without any plan, the very existence of the company can be rapidly endangered. The series of acts of the founder, who is the controlling shareholder, transferring the control of the company to their children is the process of transforming a privately owned company into a family company, and can be included in the concept of family business succession. The succession of a family business through the transfer of corporate control applies the legal principles of inheritance and gift in the civil law aspect, but in the commercial law aspect, the legal principles of the company law and furthermore, the discussion on the reorganization of the governance structure is applied. In terms of corporate governance, the key to family business succession is to pass the control over to one of the children's children. One of the most profound concerns for the controlling shareholders and managers of small and medium-sized enterprises in relation to corporate succession is how to completely hand over the family business to one of the many heirs. A stock trust is a good vehicle to help you achieve that goal. However, the Capital Market Act made the method virtually impossible to use. Resolving the problem through legislative supplementation seems to be the most complete solution, even if it takes a little longer. Of course, serious consideration should also be given to problems that may arise when the restrictions on voting rights on trust stocks are relaxed or abolished under the Capital Market Act.