회사분할의 본질(Ⅰ) - 재정립된 현물출자설에 의한 회사분할제도의 분석 - = The Nature of Corporate Division(Ⅰ) - Ananlysis of the Corporate Division System in perspective of the Re-defined In-kind Contribution Theory -

다국어 초록 (Multilingual Abstract)

The conventional personality-split theory had the utility of being able to explain the extinguishing division and provide a basis for making procedural special cases of corporate division, such as the granting of partial effect of universal succession or exemption from the inspection procedure. However, the personality-split theory is only a synonym for ‘It is a corporate division because it is a corporate division.’ It is impossible to provide any transactional law explanation for the reorganization transaction called a corporate division because it is just a repetition of the same word; it has the difficulty of not covering various forms of corporate divisions; it overlooks the fact that the economic motivation for corporate division is the establishment of a company through the contribution of property by focusing only on the fact that the spin-off company is dissolved without going through the liquidation process; it does not consider the indivisibility of personality; and it contradicts the taxation system. Moreover, considering that there have been various changes in the legal environment surrounding corporate division since the introduction of the corporate division system in December 1998, there is a great need to discuss alternative perspectives.
The traditional in-kind contribution theory explains that a corporate division should be understood from a property law perspective as an equity transaction to establish a subsidiary company. The existing in-kind contribution theory has the merit of attempting to analyze the transaction process of corporate division according to its substance, but it has the limitation that it overlooks the fact that dividend in kind is possible under the Commercial Act 2011 and is silent on the difference between corporate division and corporate establishment through in-kind contribution. Therefore, it is necessary to redefine the in-kind contribution theory in the current sense. A corporate division is a series of reorganizations in which a new company is established by transferring property and issuing new shares in exchange, and is a special type of in-kind contribution that grants a partial effect of universal succession to support M&A, exempts the inspection procedure and the court’s authorization procedure, and is not subject to the restrictions on distributable profits that apply to dividend in-kind. In the end, corporate division is a system that embodies the purpose of simplifying and facilitating the establishment of a company based on the contribution of property compared to the transactions that were previously included in de facto corporate division.
This redefined in-kind contribution theory can logically explain various types of spin-offs. Also, as in the case of an in-kind contribution, the assets to be transferred to a new company does not have to be limited to the business, as it can be any part of the company’s property. A non-proportional split-off is also theoretically justifiable if all shareholders who would be disadvantaged by the spilt-off agree to it. As in the case of establishing a company through in-kind contribution, the property to be transferred is limited to that which is accounted for as an asset on the balance sheet, and if the net asset value of the property is negative (-), it violates the legal capital doctrine, so a abusive corporate division involving treasury stock or excess debt as the property to be transferred is not allowed. Moreover, it is essentially impossible to allocate newly-issued shares to the treasury stock held by the split-off company under the in-kind contribution theory, because the corporate division is broken into two-step transactions of in-kind contribution and dividend in-kind. Of course, the in-kind contribution theory is harmonized with the tax system, which considers the transfer of property through a corporate division as a transfer of assets (an taxable event).