자산양도시 양수회사의 책임승계에 관한 연구 (Study on Successor Liability of Acquiring Company in Assets Sale)

서지정보

· 발행기관 : 한국상사판례학회
· 수록지 정보 : 상사판례연구 / 23권 / 4호 / 77 ~ 98페이지
· 저자명 : 김진철

초록

The enterprise continuance for continuous business activity but that continuance can be difficult in compliance with a various cause. These case, company steps on the process of disappearance and process that it protects the shareholder and the creditor. Specially, In transfer of business different to the enterprise combination which is caused by merger, In compliance with the method of the enterprise combination, The problem of case it does not continue currently is that acquiring company undertake only responsibility and debt of acquired company inside the scope which agrees(at contracting responsibility). Of course, it is possible that responsibility is clarify contracting responsibility in this case but it is not so simple as we think.
In this case, also it is similar to in America law. Because assets sale is different to case of merger, acquiring company doesn't undertake all debt of the acquired company.
Regarding like this problem, in America law. there is the field where the discussion becomes accomplished first is product liability field and, from the point of view of the creditor, because it is easier that they take legal responsibility for continuing acquiring company than acquired company which is already dispersed, it is developed about how they take legal responsibility for acquiring company by judicial precedent theory in America. That is, successor liability.
Different from general merger, there is principle that it is restricted to responsibility of acquiring company in transfer of business. But, like product liability in the American judicial precedent law, it is doubt that is desirable which acquiring company undertake responsibility of acquired company unlimitedly in special situation. Because it is irrational that exempts unlimitedly the responsibility of the acquiring company, and also recognize unlimitedly the responsibility of the acquiring company. In order to get the suggestion point, it will be meaning that tries observing the legal discussion of America.
Consequently, in this note, I would like to draw the suggestions to Korean law by observing regulation and legislation theory for creditor protection in the American Law and judicial precedent legal theory and the criticism.

영어초록

The enterprise continuance for continuous business activity but that continuance can be difficult in compliance with a various cause. These case, company steps on the process of disappearance and process that it protects the shareholder and the creditor. Specially, In transfer of business different to the enterprise combination which is caused by merger, In compliance with the method of the enterprise combination, The problem of case it does not continue currently is that acquiring company undertake only responsibility and debt of acquired company inside the scope which agrees(at contracting responsibility). Of course, it is possible that responsibility is clarify contracting responsibility in this case but it is not so simple as we think.
In this case, also it is similar to in America law. Because assets sale is different to case of merger, acquiring company doesn't undertake all debt of the acquired company.
Regarding like this problem, in America law. there is the field where the discussion becomes accomplished first is product liability field and, from the point of view of the creditor, because it is easier that they take legal responsibility for continuing acquiring company than acquired company which is already dispersed, it is developed about how they take legal responsibility for acquiring company by judicial precedent theory in America. That is, successor liability.
Different from general merger, there is principle that it is restricted to responsibility of acquiring company in transfer of business. But, like product liability in the American judicial precedent law, it is doubt that is desirable which acquiring company undertake responsibility of acquired company unlimitedly in special situation. Because it is irrational that exempts unlimitedly the responsibility of the acquiring company, and also recognize unlimitedly the responsibility of the acquiring company. In order to get the suggestion point, it will be meaning that tries observing the legal discussion of America.
Consequently, in this note, I would like to draw the suggestions to Korean law by observing regulation and legislation theory for creditor protection in the American Law and judicial precedent legal theory and the criticism.

참고자료

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