적격물적분할의 포괄승계 요건―대법원 2012. 5. 24. 선고 2012두2726 판결―

Korean Supreme Court Decision No. 2012Du2726 rendered on May 24, 2012(hereinafter referred to as ‘the decision’) is the first judicial decision on various legal problems related to the condition of universal succession for qualified physical corporate division, and has great significance. In shout, I do agree with some points and do not agree with the other points. First, the decision has it that if the special tax treatment should be applied for the physical corporate division, in principle all the assets and debts comprising divided business unit should be transferred. Still the decision has it that some assets and debts may well not be transferred to, and the scope of the exception is strictly confined to former Korean Corporate Tax Act Enforcement Regulation(hereinafter referred to as ‘Enforcement Regulation’) Article 41－2. The foregoing opinion of the Korean Supreme Court may be accepted from the perspective of legal interpretation for basis regulations. However the basis regulations were inacted based on the misunderstanding of the concept of the universal succession. Therefore from the perspective of de lege ferenda, the basis regulations should be revised to the point that the material assets and debts should be transferred. Second, the exceptional provision which prescribe that certain assets and debts may not be transferred to the receiving corporation should be interpreted as a illustrative provision considering the purpose of the norm. In this point, the view of the decision that the provision is of exhaustive nature is not justified. Third, the opinion that as the legal form of transferring the assets and debts, the establishment of lease is generally not allowedshall be reconsidered. Considering the purpose of the norm which requests the division of the independent business unit, the securing of the continuous business activity of divided unit after the corporate division is sufficient. There is no reasonable reason to confine the legal form of transferring to the passing of the ownership. Fourth, though it was not at issue explicitly in the decision, the part of the single business unit can be the object of special tax treatment in physical corporate division when the part can be functioned as a business unit.