자기주식 처분제도의 개선방안에 관한 소고 ― 신주발행 규제 준용의 타당성 검토를 중심으로 ―

In 2022, the Financial Services Commission held several policy seminars aimed at addressing the issue of the “Korea Discount” in the capital market, identifying the low rate of shareholder returns as one of the main problems. To resolve this, the Commission announced improvements to the own stock policy. Despite the fact that the disposal of own stock and the issuance of new shares are identical in substance, the Commercial Law treats them differently. As a result, unlike the issuance of new shares, the disposal of own stock can be freely disposed of to third parties, leading to the potential dilution of existing shareholders' equity and allowing controlling shareholders to expand their control through disposals aimed at defending their management rights. Ultimately, surplus funds that should be used for shareholder returns or future company investments are consumed in the defense of management control. To mitigate this, the Financial Development Deliberation Council proposed a mandatory cancellation policy for own stock. However, mandatory cancellation negates the potential uses of own stock, making it necessary to seek alternative policies that allow its effective use. Companies commonly use own stock for fundraising and as a compensation tool for employees. Disposing of own stock enables quick and agile cash acquisition, and offering stock compensation to employees aligns their incentives with those of shareholders, thereby promoting an increase in corporate value. Therefore, it is necessary to first apply the same policies used for the issuance of new shares to the disposal of own stock, ensuring that existing shareholders are granted preemptive rights proportional to their ownership. At the same time, to preserve the strengths of the current policy, exceptional third-party disposals should be allowed, and the introduction of protective measures that replace those lost by policy reform should be considered to safeguard the company's long-term value.