2011년 회사법 판례상의 주요 쟁점 (Review the case on corporate law in 2011)

서지정보

· 발행기관 : 한국상사판례학회
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· 저자명 : 김택주

초록

This paper research on three issues of the corporate law. First, repurchases of it’s own shares by corporate. Old Korean’s commercial code restricted repurchases of it’s own shares. But it was permitted to repurchase shares of it’s own by the amendment of commercial code, provided that the money to repurchases shares comes from distributable profits and existing shareholders are given equal opportunity to sell their shares. In this care it was the issue that purchases on the company’s account but at another’s name also regulated by the provision of commercial code of repurchases of it’s own shares. Supreme court required two element for the share purchases by another’s name to be purchases on company’s account. ① the corporate should give financial aid to the acquirer. ② benefit and loss from shares repurchases should belong to the corporate.
Under revised provision, if the corporate repurchases it’s own shares by another’s name, it will be illegal and can be void.
Second. the liability of a mutual saving bank director on project finance loan. In the case the issue was wether the business judgement rule can be applied. In order to apply that rule the management by the director should not be illegal. They point the standard to apply the business judgement rule that the director should be informed with respect to the subject enough and he should execute the management to the best interests of the corporate.
Third, Corporate divisions. Generally the transferor corporate and transferee corporate are jointly liable for the debts owned by the transferee company before the corporate division. Exceptionally the liability can several when transferee corporate burden only separate liability of the invested assets by the special agreement. In that case the transferor should notify to the known creditors of the fact of separated liability. If they neglect notifying the fact, the transferor corporate and transferee corporate should burden the joint liability. The supreme court admit the range of known creditors broadly.

영어초록

This paper research on three issues of the corporate law. First, repurchases of it’s own shares by corporate. Old Korean’s commercial code restricted repurchases of it’s own shares. But it was permitted to repurchase shares of it’s own by the amendment of commercial code, provided that the money to repurchases shares comes from distributable profits and existing shareholders are given equal opportunity to sell their shares. In this care it was the issue that purchases on the company’s account but at another’s name also regulated by the provision of commercial code of repurchases of it’s own shares. Supreme court required two element for the share purchases by another’s name to be purchases on company’s account. ① the corporate should give financial aid to the acquirer. ② benefit and loss from shares repurchases should belong to the corporate.
Under revised provision, if the corporate repurchases it’s own shares by another’s name, it will be illegal and can be void.
Second. the liability of a mutual saving bank director on project finance loan. In the case the issue was wether the business judgement rule can be applied. In order to apply that rule the management by the director should not be illegal. They point the standard to apply the business judgement rule that the director should be informed with respect to the subject enough and he should execute the management to the best interests of the corporate.
Third, Corporate divisions. Generally the transferor corporate and transferee corporate are jointly liable for the debts owned by the transferee company before the corporate division. Exceptionally the liability can several when transferee corporate burden only separate liability of the invested assets by the special agreement. In that case the transferor should notify to the known creditors of the fact of separated liability. If they neglect notifying the fact, the transferor corporate and transferee corporate should burden the joint liability. The supreme court admit the range of known creditors broadly.

참고자료

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