회사분할시 채권자보호의 적정성과 정합성 등에 관한 고찰

In this article, I firstly keep close watch on why creditors, in the process of corporation division, should be protected by the Korean Commercial Law, and reach the conclusion that creditor protection provisions are necessary not only for creditors but also for the prompt and stable settlement of practical and legal relationships between parties related to such corporate division. And then I examine if creditor protection provisions such as Articles 530-9, 530-10 and 527-5 effectively correspond to their above-mentioned necessities. My conclusions are as follows : creditor protection provisions associated with the Abspaltung are excessive regulations and restrictions in the aspect of the periodical and financial scope of joint and several responsibility by liable parties, and creditor protection provisions associated with Ausgliederung need to be eliminated because there are no needs for creditor protection in Ausgliederung. I closely study the necessity for legal and systemic consistency among several methods, such as corporate division through Abspaltung or Ausgliederung, corporate division by creating 100%-owned subsidiary, and spin-off, which can be employed by companies trying to divide their business into separate legal entities. As a result of this study, I suggest that the creditor protection regime of Ausgliederung should be repealed and the creditor protection provisions applied to Abspaltung and spin-off should be adjusted to at the balanced level for the purpose of enhancing the consistency of the corporate restructuring law.