자기주식의 처분에 관한 상법 개정안의 비판적 검토

The treasury stock carries both risks and benefits. Therefore, the Commercial Act, like other countries, strictly prohibits the acquisition of treasury stock and mandates its disposal, except in certain cases, taking into account the potential negative impact of treasury stock on the principle of capital adequacy. However, under the Securities and Exchange Act and the Financial Investment Services and Capital Markets Act, listed companies were free to acquire their own stocks within the scope of their distributable profits, and the Commercial Act, revised in 2011, also significantly relaxed existing regulations. Meanwhile, the 22nd National Assembly proposed several amendments to the Commercial Act that would mandate the cancellation of treasury stock, which had been deregulated by the 2011 amendment. This was due to strong criticism that companies were using treasury stock for long-term retention as a means to defend management rights or strengthen control over the company. However, there was also considerable criticism and concern from both academia and corporate practice. Accordingly, this paper analyzes and reviews the recent amendments to the Commercial Act, which were proposed with the main content of the cancellation of treasury stocks and its mandatory implementation, identifies the problems contained therein, and then presents the following reasonable improvement measures. The amendments should: 1) Clearly define the legal status and nature of treasury stock. 2) Apply the mandatory retirement provision only to listed companies. 3) Rather than requiring unconditional retirement of treasury stock, the holding period should be limited by type of acquisition, and the fairness of disposal methods should be ensured. 4) Note that Article 343, Paragraph 1 of the Commercial Act, which the amendments cite, should be interpreted differently from the main text and proviso. 5) Fairness in selecting a counterparty for the disposal of treasury stock is crucial, and institutional improvements are necessary. 6) The amendment’s exceptions to treasury stock holdings contain various problems and lack consistency with other regulations, requiring reexamination. 7) Prior approval of the shareholders’ meeting, which is an exception to the holding requirement in the amendments, is inappropriate and should be reexamined. 8) The validity of uniformly stipulating a short-term retirement date without any consideration of the purpose or reason for the acquisition of treasury stock should be reexamined. 9) The amendments stipulate that all provisions will take effect six months after their promulgation. However, the appropriateness of this provision is questionable, and therefore requires reexamination. 10) The amendments’ retroactive application lacks consistency with the mandatory incineration provisions and also runs counter to general legal principles regarding the retroactive application of laws, and therefore requires reexamination.