상법상 준비금 제도에 관한 연구 - 자본준비금 감액배당을 중심으로 -

The purpose and function of a reserve is to prevent misappropriate outflows of corporate assets from the company, and to protect creditors. However, in the United States, these functions of the reserve system have been viewed with skepticism, and many foreign countries have abolished the reserve system. In response to this skepticism and criticism that the reserve system has been too rigid, the Korean Commercial Act was amended in 2011 to insert the ‘Decrease of Reserves’ provision (Article 461(2) of the Commercial Act), which states that “Where the total sum of the capital reserve and the earned surplus reserve accumulated exceeds one and a half times the capital of a company, the capital reserve and the earned surplus reserve may be decreased by a resolution adopted at a general meeting of shareholders to that effect within the limit of such excess.” Since the enactment of the above provision, and even until recently, there have been many cases in which decreased capital reserves were utilized as a source of dividends using the ‘decrease of reserves’ provision, and it is said that reserves can now be utilized relatively broadly. However, there is still a lack of discussion on legal issues related to the use of reserves. This study aims to address such legal issues in as much depth as possible. Considering the purpose of the new ‘decrease of reserves’ provision, which is to allow for the flexible utilization of reserves, when reducing reserves to fund dividends, deducting an unappropriated deficit should not be a prerequisite. Also, the time of the decrease should be set as the point of reference when decreasing reserves. Finally, distribution should be made possible right after the decrease through an amendment, if necessary.