2011년 改正 自己株式制度의 立法的 補完方案

By the amendment of the Commercial Code in 2011(“the CC”), the regulation on the acquisition of its own shares by a corporation was remarkably changed. The change could be said to give the enterprises convenience in corporate finance, but many technical errors in codifying were also followed and finally brought about a variety of interpretations. Since amendment of 2011, many articles discussing on the analysis of the new system of its own shares were published. This article introduces and discusses their reasonableness of various opinions of other scholars which were published during three years after the 2011 amendment for individual issues arising from the application of new rules. And the author concludes with lege ferenda for each issue as following. 1) When a corporation acquires its own shares, a special reserve with the amount of the acquisition price should be compelled in order that the same amount as the acquisition price of its own shares shall be deducted from the distributable profits. 2) The responsibility of the directors for the loss incurred by the acquisition of its shares should be balanced with that for the loss incurred by the interim dividend. 3) The provision of section 341(1)-2 of the CC should be reworded in order to coincide with section 10(4) of the CC Decree. 4) As a long range policy, the disposal of its own shares should be performed in the manner to protect the existing shareholders’ proportionate interest. 5) It should be clearly provided that only non-par value shares can be disposed of by the resolution of the board of directors.