주식회사 자기주식의 실무상 쟁점

Treasury shares of the corporation are recognized as an exception to the principle of capital soundness and the prohibition of refund of paid-in capital under the conditions where the acquisition and disposal of such shares are restricted. In this regard, there is a fundamental controversy over whether treasury shares should be deemed equivalent to unissued shares or substantive assets of the company. In addition, there are various complicated issues regarding the acquisition and disposal of treasury shares. In addition to the direct acquisition and disposal of treasury shares, there is also a lot of controversy over the treatment of treasury shares in transactions such as mergers, divisions, and mergers. From the perspective of corporate law, it is reasonable to deem treasury share as unissued share, not as an independent asset of the company, and to interpret transactions related to the acquisition and disposal of treasury share as a capital transaction equivalent to the refund of the company's capital, not an ordinary transaction of the company's assets. However, the uniform application of such an fundamental perspective alone is insufficient to reasonably understand, interpret, and resolve complex problems in practice that arise in relation to the handling of treasury share in acquisition and disposal of treasury share and restructuring transactions such as merger, spin-off, and spin-off merger. In addition to the macro-consideration of the fundamentals of treasury share based on the basic legal principle of a corporation's financial structure, micro-analysis based on the view point of specific appropriateness is also important in order to solve the practical problem arising from the uniform application of a theoretical perspective. In particular, it is necessary to consider the legal interpretation and implication on the relevant issues, such as the issue of the criteria for determining the fiduciary duties and responsibilities of directors in a transaction to acquire and dispose treasury shares, and the issue of treating treasury shares under tax law and taxation on related restructuring transactions and so on. Based on such comprehensive considerations of the issues, this paper analyzed various practical problems that actually arise in relation to treasury share of a corporation, and reviewed reasonable interpretation and legislation approach to effectively resolve them.