회사분할의 본질(Ⅱ) - 현물출자설에 입각한 회사분할제도의 재편 -

This article represents a continuation of the previous study [The Essence of Corporate Division(Ⅰ)], which concluded that the essence of corporate division is a special form of contribution in kind. In the context of the recent issues and criticisms directed towards corporate division, legislative solutions have been proposed in a comprehensive manner. The objective of this article is to identify a logically consistent solution in relation to the nature of corporate division. The proposed solution is categorised into the following four aspects: (1) legislative changes, (2) shareholder protection, (3) creditor protection, and (4) tax law implications. Firstly, with regard to the legislative approach, the amendments define a spin-off as the primary form of division, while concomitantly providing that all or part of the spin-off shares may be allotted to the shareholders of the spin-off company. Consequently, the amendments have resulted in the implementation of a hybrid division model, whereby a proportion of shares intended for demerger are allocated to the shareholders of the demerged company, with the remaining shares being allocated to the demerged company itself. In the following section, the protection of shareholders in the event of a corporate division is considered, with particular reference to the potential infringement of the interests of minority shareholders in such a scenario. In order to address this concern, the introduction of dissenting shareholdersʼ appraisal rights is proposed. However, it is proposed that the shareholdersʼ special resolution be exempted, and that the dissenting shareholdersʼ appraisal rights be exercised, in the case of a small-scale corporate division in which the property to be divided does not exceed one-tenth of the total assets of the dividing company. This is in light of the fact that Articles 374(1) and 393(1) of the Commercial Code stipulate the approval of the shareholdersʼ general meeting and the board of directors based on the size of the company. In the case of a proportional split-off, where all of the split-off shares are attributed to the shareholders of the split-off company in proportion to their holdings, it would be appropriate to provide a special provision to exempt dissenting shareholders from exercising their appraisal rights, considering that the interests of the shareholders are not substantially changed through the corporate division. It is evident that the order and composition of the corporate division tax system must be modified in accordance with the reorganisation of the legislation of corporate division. Ultimately, it is imperative to harmonise the taxation system between in-kind contributions and corporate divisions.