상법상 무효인 자기주식 취득과 과세문제

The company's acquisition of its own shares would not only violate the law of Chaos because the nature of the entity and its shareholders is not separated, but also because the acquisition of the shares with funds would result in a refund of the capital without a capital reduction procedure, which would be contrary to the principle of capital loss. Thus, the commercial law strictly regulates the acquisition of equity shares and allows the acquisition of equity shares within the limits of dividendable profits in accordance with the methods and procedures set by the Act as amended in 2011. The amendment to the Commercial Act allowed unlisted entities to acquire their own shares within the limit of dividendable profits and, in the event that the company was allowed to pay dividends through the board resolution, they could acquire their own shares through the resolution of the board of directors without going through a shareholders meeting. Therefore, because of the nature of non-listed entities, companies that formed most shareholders as related parties could easily transfer their assets to shareholders by acquiring their own shares from shareholders through the resolution of the Board of Directors if they had retained earnings (dividendable profits). Of course, in the event of a high-priced transfer from a related shareholder, a gift tax shall be levied on the shareholder or, in contrast, the difference between the market price and the purchase price shall be calculated with the Company’s profit. The most controversial issue with respect to the acquisition of own shares depends on whether the acquisition of their own shares in violation of Article 341 of the Commercial Act is invalid, and it is important to identify the entity hiding within the transaction of its own shares, which needs to be taxed through the tax investigation authority.