가장납입의 효력에 관한 법적 검토

This paper studies on the effect of so-called disguised payment whereby there is in fact no payment of newly issued stocks and/or convertible bonds, including any practical benefit following the Korean civil precedents which deal with such disguised payment as legally effective. This study also criticizes that the Korean Supreme Court’s present attitude which it has shown from its criminal precedents about disguised payments and examines the direction of Korean Supreme Court’s attitude in criminal cases. Disguised payment should be strictly regulated because it not only causes burdens to the issuing company but also incurs misbeliefs to the issuer’s creditors, etc. about its financial position. However, disguised payment had better be regulated by the Crimes of Misappropriation of the Korean Criminal Act or a Korean special Act – the Act on the Aggravated Punishment, etc. of Specific Economic Crimes which imposes an aggravated punishment rather than by the Crimes of Disguised Payment under the Korean Commercial Act in consideration of dispelling misunderstanding of law, convenience in legal practice, balanced sentences in Korean situation, and transaction security for stocks circulated. In this aspect, the Korean Supreme Court’s judgment of 2012DO235 is encouraging whereby it shows that a Crime of Misappropriation can be in principle sentenced to directors who engaged in issuing convertible bonds by disguised payment. Convertible bonds can be converted into stocks without additional payments to an issuing company once bond holders exercise their convertible rights. Therefore, this ruling of 2012DO235 can suggest a desirable direction which the Korean criminal precedents should aim at. Korean criminal judgments like ruling of 2003DO7645 should be changed toward the way that disguised payments are legally effective and that the participants of disguised payment should be sentenced by the Crime of Misappropriation.