자기주식의 경제적 실질과 그에 따른 법률관계

The legal treatment on stock buyback in Korean corporate law is one of good examples of inefficiencies resulted from ignoring the economic substance of transaction. A corporation's buying its own shares is economically identical with distribution of corporate asset to the shareholders; its selling treasury shares can be regarded as issuing new shares. The economic effects of such transactions are especially the same in terms of the interests of corporate stakeholders such as shareholders and creditors. The current corporate law and court decisions, however, do not take into account the economic substance of the stock buyback and treasury shares. They regarded the transactions as ordinary purchase and sale of stocks. Although the Korean corporate law was revised in 2011 and corrected the errors, several provisions and case laws are still alive. For instance, treasury shares are treated as assets. The court does not recognize the preemptive rights when it comes to the sale of treasury shares. Such legal doctrines may result in providing for several opportunities of regulatory arbitrage and economic inefficiencies. Therefore, current corporate law on stock buyback should be reconsidered according to its economic substance.