가장납입에 관한 새로운 해석론 - 자본시장법 제178조의 부정거래로서 포섭 -

Abstract

This paper offers a new interpretative analysis of disguised capitalization(i.e., disguising payments for share subscriptions by withdrawing paymentsimmediately after completing whole share issuance procedure), in terms ofshare subscription under the Korean Commercial Code (hereafter, KCC). There was a widespread tendency to evade payment for share subscriptionupon establishment of a company due to the minimum capital requirementbefore 2009. The minimum capital requirement was abolished in anamendment to the KCC in 2009, and afterwards demand for disguisedcapitalization also decreased. Traditional approaches have simply assumed that in the incorporationprocess, any fraudulent payment for share subscription would be invalid,rendering the disguised capitalization ineffective, since it results in a lack ofcapital to the corresponding newly issued shares (this is contrary to theso-called capital faithfulness principle of corporate law). In addition, manyscholars advocating the traditional view have proposed to resolve thisproblem by having the subscribers repay the capital contribution or havingthe promoters pay any compensation against any losses incurred. They offerno further explanation of disguised capitalization occurring after establishmentof a company. The Korean Supreme Court, however, has consistently held the position that payments of share subscriptions are valid and effective, regardless ofwhether the payments are disguised, contrary to these traditional views, onthe grounds that real money is transferred to the company's account, as faras the civil and administrative cases are concerned. Nevertheless, solid precedents exist in Korean court cases in which sharesubscriptions by disguised payments have been treated as null and voidbased on criminal laws, if the criminal courts have mandated criminalsanctions against violators of these prohibitions against fraudulent sharesubscription payments. This paper argues in favor of the civil court’s positions regarding theeffectiveness of share subscriptions from a legal and economic viewpoint. This paper examines legal issues arising from the traditional views andthe between interpretations from civil and criminal courts. Finally, this paper also proposes the possibility of treating such disguisedcapitalization as a type of securities fraud that is defined as an unfairsecurity transactions under Article 178 of the Financial Investment Servicesand Capital Markets Act (hereafter, FSCMA). This would be regulation of theKorean stock exchange market, which would provide for the financialauthority’s investigation and criminal proceedings by the Korean Prosecutors’Office. This paper also describes similar cases which bring into questionsuch disguised payments in relation to share subscriptions in Japan, and theJapan Securities and Exchange Surveillance Commission deals with suchcases as unfair financial act, after they have been investigated and dealt withby the Japanese Prosecutors’ Office as securities fraud.