상법 제341조에 따른 자기주식 취득 - 대법원 2021. 7. 29. 선고 2017두63337 판결을 중심으로 -

The provision of Article 341(1) of the Korean Commercial Code(“Code”) states that the total acquisition price for the treasury shares must not exceed the amount obtained by subtracting the items prescribed in the subparagraphs of Article 462(1) from the net assets value on the balance sheet for the immediately preceding fiscal year. Further, the subparagraphs of Article 462(1) states (a) the paid-in capital, (b) the total amount of the capital reserve and the earned surplus reserve already accumulated until the pertinent fiscal year, (c) the amount of earned surplus reserve to be accumulated for the pertinent fiscal year, and (d) unrealized profits determined by Presidential Decree of the Code(Section 19 of such Decree). Since Article 462(1) of the Code provides for the amount of profits available for dividends, it’s often explained that the financial source for the acquisition of the treasury shares under Article 341 of the Code should be the distributable profits. Here, the distributable profits to be calculated in accordance with the Code is merely an accounting concept, and not tangible cash amount. Hence, the above explanation that the financial source for the acquisition of the treasury shares should be the distributable profits simply means that the total acquisition price for the treasury shares under Article 341 of the Code must not exceed the amount of the distributable profits calculated in accordance with the Code, and for accounting purpose, the amount of the acquisition price should be deducted from the items constituting distributable profits on the balance sheet (and thus, the amount of the paid-in capital and mandatory reserves under the Code should remain unchanged on the balance sheet). Therefore, it does not mean that the acquisition for the treasury shares under Article 341 should use tangible cash amounts labeled as “distributable profits” in the real world. If the company does not have sufficient cash for the acquisition of treasury shares, it can borrow cash and use such borrowed cash as long as the total price for the acquisition is less than the amount of distributable profits. This Supreme Court’s decision made it clear that the company may borrow cash and use such borrowed cash for the acquisition of treasury shares under Article 341 as long as the total acquisition price is less than the distributable profits. In addition, the decision ruled, in a case where an unlisted company acquires treasury shares in accordance with Article 341 and it fails to provide for certain minor items in giving notices to its shareholders, that the acquisition should not be found null and void as long as each shareholder has been given fair opportunity to sell his/her shares to the company. The court should review the totality of the relevant circumstances in determining whether each shareholder has been given such fair opportunity such as whether the notice contains the essential terms of the acquisition. The court should review and determine it on a case-by-case basis, and accordingly, we should pay attention to future court rulings dealing with similar cases.