주식회사 배당의 실무상 쟁점

With respect to the corporate finance, the effective financing and returning of the corporate capital are important. The regulations on the corporate finance by the Korean Commercial Code (the “KCC”), the Financial Investment Services and Capital Market Act (the “FSCMA”) and so on focus mainly on protecting various interest parties of a company while enabling the effective procurement of financing and return of capital. The issue of capital return, i.e., whether the company’s retained earnings generated from its business operation can be returned to its shareholders in a timely manner is also crucial just like the issue as to how effectively financing can be procured and used for the company’s business. Especially in case where the return rate upon reinvestment of retained earnings at the company is lower than the current weighted average cost of capital, returning the retained earnings to the company’s shareholders through dividend distribution is more efficient from the perspective of the company. The retained earnings may be returned to shareholders through regular dividend, interim dividend and quarterly dividend, etc. by laws and also, the acquisition of treasury shares that may be effectuated using distributable profits can be reviewed altogether in connection with the above issue. However, as the provisions on requirements and implementation method thereof are unclear or discriminatory treatment is made to each distribution method without justifiable reasons, the legislative improvement is required. Particularly with regard to the calculation of distributable profits, the Ministry of Justice has issued its authoritative ruling to the effect that the reduction of legal reserve based on the Article 461-2 of the KCC and the dividend of distributable profits increased taking into account such reduction of legal reserve can both be resolved at the annual general meeting of shareholders, but this issue is still unclear from the perspective of the plain languages of laws and controversial as a matter of accounting practices so it is necessary to make certain legislatively. For the quarterly dividend, in calculating distributable profits, the non-deduction of amount of quarterly dividend made during the previous quarter and legal reserves as a result needs to be changed by reasonable legislation. Furthermore, in calculating distributable profits to acquire treasury shares, the non-deduction of (i) regular dividend resolved at the annual general meeting of shareholders held in respect of the immediately preceding fiscal year and (ii) the interim dividend or quarterly dividend made after the end of the previous fiscal year and (iii) legal reserve as a result, and the non-deduction of unrealized profits when calculating the distributable profits for interim dividend and quarterly dividend need to be improved through legislation. Besides, with respect to the calculation of distributable profits, the scope of net assets and deductible items is practicably unclear in many respects. Also, no clear guideline has been in place as to practical issues in the actual distribution such as in-kind dividend, interim dividend and quarterly dividend, acquisition of treasury shares, discriminatory dividend, effect of illegal dividend, cancellation of dividend and dividend in a foreign currency. Therefore, it is necessary to draw a reasonable and clear interpretation upon such issues practically.