개정상법에 의한 자기주식취득 제도의 변화

Since 2012, the amendment of the Commercial Act have changed its regulation on the acquisition of company's own shares from absolute prohibition with exceptions. Article 341(1) of the Commercial Act allows the acquisition of company's own shares based on the rules such as limitation of acquisition fund. Thus, for now, the acquisition of company's own shares shall not be regarded as a prohibited act. In acquiring company's own shares, the principle of the equality of shareholders shall be complied in accordance with Article 341(1) of the Commercial Act. However, Article 10(4) of the Presidential Decree of the Commercial Act, which prescribes the method to determine the acquired shares, does not conform to the principle as well as Article 341(1) of the Commercial Act. Just in order to avoid the inevitable chaos, Article 341(1) may be interpreted with limitation on the intended meaning of the principle of the equality of shareholders, and Article 10(4) of the Presidential Decree of the Commercial Act may be regarded as an exception introduced by law. However, considering the legislative purpose of the Amendment of the Commercial Act, the concerned part in Article 10(4) of the Presidential Decree of the Commercial Act shall be deleted to realize the principle of the equality of shareholders. In case company's own shares are acquired in violation of the restriction, such acquisition were regarded to be absolutely void for infringing the principle of capital protection. However, the regulatory change on the company's own shares under the Amendment of the Commercial Act shall be considered in determining the effect of such transactions. Actually, the acquisition of the company's shares by listed company is already allowed and not regarded as void, and there is no reason to differentiate the acquisition of the company's shares by listed company and that by unlisted company under the Amendment of the Commercial Act. Thus, only when the company's shares are acquired in conspiracy of the shareholders and company knowing that the acquisition is violating the restrictions, such acquisition shall be void for infringing the principle of capital protection.