자기주식처분과 주식평등원칙에 관한 연구 = A Study on Disposition of Company`s Own Shares and Principle of Equality of Shares

다국어 초록 (Multilingual Abstract)

A question was raised as to whether it is legal if the management structure of a company changes because the principle of equality of shares is not applied when one transfers one`s own shares. On one hand, according to a lower court ruling that examined the Daelim Trading Corporation case, the transfer of shares is nullified. On the other hand, according to most lower court rulings that examined the Samsung Construction and Trading Corporation (hereafter “Samsung C&T”), such transfer of shares is valid. Many scholars argue that it was the intention of the legislators to not apply the procedures on the issuance of new shares to the disposal of one`s own shares. However, in the case of selling one`s own shares, the intention of the legislators will become clear only after the Congress approves regulations that either enforces the principle of equality of shares or prohibits it. Since the Congress has not approved such regulation, we believe that the intention of the legislators cannot be determined. As in the case of Samsung C&T`s transfer of shares, the merger resolution can be approved or rejected, depending on whom the board of directors transfers its shares to. The merger would have been rejected if the board of directors transferred all of its shares to a party that opposes the merger. As in the case of Daelim Trading Co.`s transfer of shares, when the board of directors transfers its shares to the largest shareholder, the gap between the two shareholders grows large enough to meet requirements for a special resolution of shareholder`s meeting and split the corporation. If the board of directors transferred all of its shares to the second largest shareholder, the control of the company-specifically, the right to appoint directors-would have changed. In both case, the arbitrary decision of the board of directors to transfer its own shares could have caused a change in control of the company. It is unfair if the control of the company is changed by the board of directors, which consists of directors who did not invest in the company. When the transfer of shares causes a significant decrease in shareholder`s profit proportional to control of the company, it is reasonable for the shareholder whose right has violated to be able to protect his right by adapting the regulations that apply to lawsuits over nullity of the issuance of new shares. There arises the question of commerce protection if the regulations that apply to lawsuits over nullity of the issuance of new shares are adapted and the transfer of shares is nullified. In both cases, a large quantity of listed stocks were acquired by a friendly party or the largest shareholder over the counter. It is very likely that the transferees were aware that they could have a significant influence on management structure of the company, or that they acquired the shares without knowing this fact due to gross negligence. It is reasonable to protect existing shareholder`s control of the company, rather than protect a person who is malicious or grossly negligent. In this regard, it is simply necessary to protect a well-intentioned third party. It is reasonable to protect the safety of trading shares If an ill-intentioned person, who has acquired his own shares, transfers the shares to a third party, or if the shares are acquired through the stock market.

참고문헌 (Reference)

• 1 김성탁, "회사법입문(제6판, 단독)" 법문사 2016
• 2 김화진, "주주총회 관련 제도의 개선을 통한 상장회사 주주권의 강화" 법무부 (73) : 5-48, 2016
• 3 윤은경, "자기주식처분에 대한 규제 - 서울중앙지방법원 2015. 7. 7. 자 2015카합80597 결정 및서울고등법원 2015. 7. 16. 자 2015라20503 결정을 중심으로 -" 법학연구소 16 (16): 309-330, 2015
• 4 염미경, "자기주식의 취득과 처분에 관한 쟁점의 검토" 한국경영법률학회 26 (26): 151-178, 2015
• 5 이영철, "자기주식의 취득 및 처분과 관련된 몇 가지 쟁점" 한국기업법학회 28 (28): 99-139, 2014
• 6 송종준, "자기주식의 처분절차규제에 관한 소고 제3504호" 법률신문
• 7 김정호, "자기주식의 처분과 경영권 방어" 한국경영법률학회 24 (24): 51-88, 2014
• 8 이부하, "입법자의 입법형성권의 내용과 한계" 한국법정책학회 13 (13): 91-113, 2013
• 9 정주백, "입법자 구속설 비판" 충남대학교 법학연구소 23 (23): 9-43, 2012
• 10 법제사법위원회, "상법 일부개정법률안(정부 제출) 검토보고"
• 11 권재열, "삼성물산 대 엘리엇 결정 -주요쟁점의 재검토-" 한국상사판례학회 28 (28): 3-54, 2015
• 12 이철송, "불공정한 자기주식거래의 효력 - 주식평등의 원칙과 관련하여" 한국증권법학회 7 (7): 1-25, 2006
• 13 최준선, "개정상법상 자기주식의 취득과 처분" 한국상사법학회 31 (31): 219-241, 2012
• 14 Nicola de Luca, "Unequal Treatment and Shareholders’ Welfare Growth: Fairness v. Precise Equality" 34 : 853-, 2009
• 15 Y. J. Kim, "Hedge Funds spur business debate in Asia"
• 16 김건식, "21세기 회사법개정의 논리" 도서출판 소화 2008