협동조합기본법상 일반협동조합의 조직개편에 관한 입법론적 제언

The purpose of this article is to evaluate whether the current legal system under the Framework Act on Cooperatives(hereinafter the “FAC”) meets the needs for the organizational restructuring of the general cooperatives(hereinafter the “GCs”), introduced as a type of enterprises pursuant to the FAC in 2012, and to discuss proposals for the amendments of the FAC in order to accommodate such necessity and improve the legal system for the restructuring of the GCs. The author acknowledges that the FAC provides for the foundation for the GCs’ restructuring by introducing the basic system for the merger and consolidation between/among the GCs and the scission into two or more GCs, including its 2014 amendments allowing a corporation’s merger into a GC and the conversion into a GC by a corporation or other types of legal entities. However she finds that, in terms of the policy to boost the restructuring of the GCs as well as the legislative techniques to enhance the legal stability, the FAC needs to be revised or supplemented in resprect of a wide variety of subjects. First, the author points out that the interested parties are not protected enough during the course of the restructuring of the GCs under the FAC and proposes that : i) the dissenting minority members should have the right to resign and to redeem their equities; ii) the creditors should be properly informed of the restructuring and, in the case of the scission, the FAC should allow the GCs to choose the way of protection for the creditors as is the case of the corporate scission under the Commercial Code; and iii) those who make preferred contributions to a GC should be positioned and protected as quasi-creditors in the course of the restructuring. Secondly, she stresses that i) the administrative procedure such as a notification with acceptance reservation or a license which is required for the restructuring under the FAC should be designed to put emphasis on the preservation of the identity of the GCs throughout the restructuring and ii) such procedure should be predictable and the legal consequences of the defects or flaws thereof should be clearly provided for. Thirdly, the FAC must be refined in terms of the legislative techniques applicable to the organization laws: i) the provisions for the scission needs to be totally repaired by separating those from the set of the provisions for the merger and by filling up the legislative gap originated by the FAC provision generally applying to the GCs the laws on the limited liability companies which have no legal system for the scission; ii) the legal ramification of the registration for the restructuring should be clarified; iii) the system for the lawsuits nullifying the defective restructuring should be instituted in the FAC; iv) the FAC should stipulate the set of provisions applicable to the corporations that would cease to exist upon completion of the merger into the GCs; and v) in the case of a merger or a conversion transaction involving both a GC and a corporation, the FAC should provide for the resolutions for the legal issues deriving from the conflicts of laws applicable to each of the GC and the corporation surrounding, for instance, the debentures, classes of shares, the subrogation, treasury stock, the holding limits and the minimum number of equity holders. Fourthly, she emphasizes that, from the view point of the legislative policy, it needs to be considered whether and to what extent the GCs would have more options both as to the legal character of the counterparts involving the restructuring and as to the more sophisticated legal structure of the restructuring including the tiered or holding company structure.