자기주식의 취득⋅처분과 내부자거래의 규제

Before the revision of the Commercial Act of Korea on 14 April 2011, stock repurchase, which means the reacquisition of a company’s own shares by its management, was prohibited in principle except in exceptional cases. Also any shares obtained through stock repurchases were required to go through invalidation procedures immediately or to be disposed of at an appropriate time; however, under the revised version of the act stock repurchases are allowed with a few restrictions on their funding as long as the repurchase is approved by a general meeting of stockholders, and also any shares obtained through stock repurchases may be held or disposed of at the discretion of the management, Also, under the same law, the reacquisition by a company of its own shares is allowed in case of a decision by the board of directors established under statutory authority. Experts and scholars have suggested numerous concerns over stock repurchases. In particular, one of the biggest problems cited is that of insider trading, which refers to the trading of a company’s stock by the company’s management using its own calculation or insiders trading on private information, an activity that is illegal,It is for this reason that the previous Securities and Exchange Act of Korea prohibited the management of a company from using unpublished or private information for buying or selling a company’s own stock. The current version of the same act also preserves this prohibition provision in Article 147, which is a revised form of the prohibition provision of the old Securities and Exchange Act. The author of this essay suggests a review of a number of issues over restrictions on a company's insider trading, which is the repurchase or sale of the company’s own stock. From this perspective, the essay attempts to investigate any conflicts that may occur between the current provisions in the Commercial Act on a company’s repurchase or disposal of its own stock and the provisions of the Financial Investment Services and Capital Market Act on insider trading. Part II offers an overview of such provisions of the current Corporation Act and the Financial Investment Services and Capital Market Act of Korea. Part III examines stock repurchases and insider trading and attempts to find the types of information regarded as important for regulating stock repurchases and related insider trading,the legal implications of the decision making by a company to reacquire its own stock, whether a company may engage in repurchasing its own shares in case the company has important information in its possession, and the means by which companies avoid regulation on repurchases of their own shares. Part Ⅳ elaborates on the disposal of a company’s own shares and insider trading, examines the types of information regarded as important for regulating a company’s decision making process for the disposal of its own shares and related insider trading, considers under what circumstances regulations may be imposed on a company’s decision making about the disposal of its own shares and related insider trading, looks into the legal ramifications of a company making such decisions, and examines the reasons that a company’s selling of its own shares through the financial markets is not acknowledged Part V provides the conclusion.