特定 營業의 資産과 負債가 分離되는會社分割의 可能性 ― 대법원 2006. 10. 12. 선고, 2006다26380 판결 ―

Recently various companies including big conglomerates are using such a corporate division method as a reorganization motive of the company. But there has been a surge in the companies’ demand to divide only assets that are not based on a particular business property, and in particular due to tax exemption for corporate divisions rather than the transfer method, there have been numerous attempts recently by the companies to divide assets only except debts. However, the Korean Commercial Code does not state clearly whether the division of a company based on assets only is possible, and thus the resolution of this issue is important in practice. Therefore, in the absence of particular guidelines presented in the Korean Commercial Code, this paper attempts to provide a certain standard about the way of corporate division through profound research and thorough analysis of this target judgement. The topics at issue in this target judgement are followings. The first, after complete separation of the assets and the debts belonging to a particular business property that is the subject of a corporate division, the form of a simple-division or merger-division that a divided company remain the debts in himself and succeed the assets to a beneficiary company is valid in the state of exclusion from a joint responsibility of the companies involved in the corporate division. The second, in the case of such a corporate division, what is the scope of the company's creditors who are required the individual peremptory notice for the right to object as a creditors whom the divided company know in order to protect the creditors. In this paper, I was examined with respect to the validity of the argument and analysis of the target judgement about this subject.