주식회사 청산의 실무상 쟁점

Under the influence of a recent depression, many companies determined to go into liquidation and close their business when, although the companies were not insolvent yet, their business did not seem viable so that they can pay out the outstanding debts with the companies’ assets. This type of voluntary liquidation through dissolution, in particular, dissolution and liquidation of a corporation (Jusik Heosa) is stipulated under Articles 517 through 522-2 and Articles 531 through 542 of the Korean Commercial Code (“KCC”). However, other than the KCC provisions, there is only a handful of court decisions and academic studies discussing about the practical or theoretical issues that may arise out of the liquidation procedure of a corporation. Under this circumstance, this study aims to provide general overview of the practical and theoretical issues relating to the liquidation/dissolution procedures under the KCC that apply to a corporation and then discuss whether there is any aspect in the KCC procedures to improve, either by legislation or interpretation of law, after comparing the KCC procedures with the corresponding procedures of the U.S. and Japan. In case of liquidation, unlike insolvency procedures, the underlying assumption is that the liquidating company has sufficient assets to repay the existing debts – i.e., the relevant company is not insolvent. If it becomes evident during the liquidation process that the liquidating company does not have sufficient assets to repay the debts, the liquidator must apply for the declaration of bankruptcy without a delay in accordance with Articles 542 and 254-2 of the KCC and Article 93 of the Korean Civil Code. Therefore, distinguished from the insolvency procedures, such as rehabilitation and bankruptcy procedure, which require the companies strictly comply with the formalities in the process of, for examples, credit claim reporting, debt repayment, and assets investigation in order to ensure the fair distribution of insufficient company assets, the liquidation procedures place more importance on the procedural efficiency and flexibility to enable the shareholders to promptly dispose non-viable businesses and improve profitability of their business portfolio. In particular, under the current liquidation regime, where a dispute occurs during the process of credit claim reporting and debt repayment, distribution of the company’s residual assets is prohibited until such dispute is resolved without an exception. In addition the liquidating company cannot even pay the ordinary costs and fees in a small amount, such as office maintenance expenses and costs relating to supply of office appliances during the credit claim reporting period, which causes inefficiencies preventing smooth operation of the liquidation procedures. Such practical difficulties should be resolved by legislation or decision/interpretation of the courts.