이사회 결의를 통한 임의준비금 사용 목적 변경의 위법성과 경영권 유지 목적의 대항적 공개매수를 통한 자기주식 취득의 문제점 - 서울중앙지방법원 2024. 10. 21.자 2024카합21491 결정 -

The author planned this paper with the aim of considering related issues in the company’s accounting sector that have not been particularly highlighted in the Company Act, based on the facts relevant to the recent tender offer and counter-tender offer(tender offer of treasury stocks by current management) case. This paper also aims to present a distinct reference point whether the tender offer of treasury stocks by current management for maintaining its control can be always justified or whether other requirements should be also satisfied. After briefly introducing the fact and the court’s decision in this case, the author intends to focus on the following two serious issues. First, whether the discretionary reserves accumulated for the designated purpose by shareholders’ meeting, the highest decision-making body of a company, can be included in the distributable profits during the acquisition of treasury stocks through the arbitrary alteration of the purpose by the board of directors. Second, in what cases the tender offer on treasury stocks can be regarded as a violation of the director’s duty of care and loyalty and can be regarded as a criminal breach of fiduciary duty to the company. In particular, this paper emphasizes that it is illegal to alter the purpose of use of discretionary reserves and to include them in the distributable profits for the acquisition of treasury stocks by an arbitrary resolution of the board of directors. In addition, this paper argues that the tender off of treasury stocks may be not only a violation of the director’s duty of care and loyalty, but also a potential being treated as a criminal breach of trust to the company. Remarkable and significant legal issues were contested at this competitive tender offer case. However, since the date for acquiring treasury stocks by the current management was imminent, it remains regrettable that creditors did not have enough time to appeal to the court’s decision for getting solutions of interim issues and also did not get a final judgment on the main issues. It is expected that the same similar issues will occur in the future M&A market, and these issues will be dealt with in earnest. In order to prepare well beforehand, this paper presents only a very rudimentary and experimental discussion. The author looks forward to a very in-depth subsequent study on these issues later.