상법개정안상 자기주식 및 주식소각 제도의 검토

Abstract

This article reviews legal issues related to stock repurchase and cancellation of shares under 2008 revision draft to the Korean Commercial Code (KCC) which is currently referred to the Korean National Assembly. The revision draft of the KCC deregulates the stock repurchase mechanism by liberalizing the repurchase of its own stock by the corporation. The draft also eradicates the cancellation of shares through the profit and integrates it into stock repurchase system. However, the revision draft of the KCC does not stipulate specific method of stock repurchase. Since the KCC regulates listed and unlisted corporations simultaneously, the KCC needs to provide various methods of stock repurchase including the stock purchase by shareholder agreement or the repurchase via private transactions. Regarding the sale of treasury stock the KCC does not prescribe the require ments and relevant procedures of the sale of treasury stock except the disposit ion period. With a view to enhancing the flexibility of equity financing and maintaining the equity ratios of existing shareholders, the sale of treasury stock must be conducted on equal basis per share. Also this article discusses the cancellation of shares mainly focusing on the revision draft to the KCC. According the revision draft there is no regulati on to limit the number of shares which can be repurchased for the cancellation purposes. Without the limitation, theoretically 100% cancellation may be allowed and it has the same effect as corporate dissolution. This article suggests to put the ceiling on the number of cancelled shares. However, in the case of 100% reduction of stated capital and offering new stocks for subscripti on at the same time, 100% reduction needs to be allowed.