영업양수도의 새로운 쟁점과 개선방안 (New issues and improvement measures with respect to business transfer)

서지정보

· 발행기관 : 한국경영법률학회
· 수록지 정보 : 경영법률 / 25권 / 1호 / 33 ~ 67페이지
· 저자명 : 이승희, 황현아

초록

In reality, although business transfer and asset transfer perform similar economic roles, asset transfer has been more widely used than business transfer because the former only requires a resolution by the board of directors while the latter, in principle, requires a special resolution at a shareholders meeting under the Commercial Code. Especially, since risks arose from such unsettled concepts as “materiality” and “criticality” in the cases of business acquisition and transfer, corporations avoided M&A by business transfer. As a result, even in some cases when business transfer would be the most appropriate method considering the purpose and motivation, asset transfers were used after disassembling organizations because of the procedural inconvenience and uncertaintyConsidering that the goal of the business transfer method is to “avoid the social and economic cost that may be caused by dis- assembling an organized business into individual assets and transferring the assets and to attempt to maintain the value of the preexisting organization”, disassembling a business to avoid procedural incon- venience would result in a large social economic cost and inefficiency. If an amendment to the Commercial Code which would require a special resolution at a shareholder meeting for an asset transfer of more than a certain size is passed, the imbalance of regulation governing business transfer and asset transfer would be mitigated. In addition, an amendment to the Commercial Code or Enforcement Decree of the Commercial Code that more clearly defines the requirement of “materiality” and “criticality” would increase predic- tability for corporations, which would allow them to take advantage of business transfer at a greater frequency.
On the other hand, it is necessary to continue to exert efforts to streamline and integrate the interpretation of the distinction between business transfer and asset transfer under the labor law and corporation law. Moreover, if there is a change in the subject of the personal data processor in the realm of personal data protection, it would be inevitable for the subject of the personal data to exercise certain rights such as withdrawal of consent in this age when the importance of protection of personal data is increasing.

영어초록

In reality, although business transfer and asset transfer perform similar economic roles, asset transfer has been more widely used than business transfer because the former only requires a resolution by the board of directors while the latter, in principle, requires a special resolution at a shareholders meeting under the Commercial Code. Especially, since risks arose from such unsettled concepts as “materiality” and “criticality” in the cases of business acquisition and transfer, corporations avoided M&A by business transfer. As a result, even in some cases when business transfer would be the most appropriate method considering the purpose and motivation, asset transfers were used after disassembling organizations because of the procedural inconvenience and uncertaintyConsidering that the goal of the business transfer method is to “avoid the social and economic cost that may be caused by dis- assembling an organized business into individual assets and transferring the assets and to attempt to maintain the value of the preexisting organization”, disassembling a business to avoid procedural incon- venience would result in a large social economic cost and inefficiency. If an amendment to the Commercial Code which would require a special resolution at a shareholder meeting for an asset transfer of more than a certain size is passed, the imbalance of regulation governing business transfer and asset transfer would be mitigated. In addition, an amendment to the Commercial Code or Enforcement Decree of the Commercial Code that more clearly defines the requirement of “materiality” and “criticality” would increase predic- tability for corporations, which would allow them to take advantage of business transfer at a greater frequency.
On the other hand, it is necessary to continue to exert efforts to streamline and integrate the interpretation of the distinction between business transfer and asset transfer under the labor law and corporation law. Moreover, if there is a change in the subject of the personal data processor in the realm of personal data protection, it would be inevitable for the subject of the personal data to exercise certain rights such as withdrawal of consent in this age when the importance of protection of personal data is increasing.

참고자료

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