자기주식의 처분과 경영권 방어

Abstract

It has been prevalent for a business corporation established by the Korean law to re-purchase her own stocks for defense purpose. There has been wide range of discussions on whether these re-purchases are legal-theoretically flawless. The Commercial Code of Korea experienced in the year of 2011 a wide range of revision regarding the "company law" part (Part II). In especially the legal scheme on the treasury stock has changed deeply. From the year 2011 on, a korean company, listed or non-listed, is permitted to call her own stocks for treasury. According to the section 342 Korean Commercial Code, the board of directors is to be powered to dispose company's own stocks without any further regulation. In the meantime, the foreign nations like Japan, United Kingdom and Germany, have commonly the same written statutes on the disposal of treasury stocks. They impose a strictly regulated procedure from capital raising law. The japanese company law 2006 demands a procedural requirement like in the capital raising for consideration. The U.K. company law 2006 and the German Stock Corporation Act also follow this path. A unique exception from this trend could be found in the U.S., where the most state laws permit the company a wide range of freedom on acquisition and disposal of treasury stocks. The author recommends a reconsideration on the new section 342 of Korean Commercial Code.