자기주식 처분의 공정성 확보를 위한 회사의 사전적·사후적 통제 수단에 관한 고찰

Amidst moves to mandate the cancellation of treasury shares in the Commercial Act, alternative proposals suggest measures enabling companies to ensure fairness in the disposition of treasury shares themselves. Accordingly, this paper examines existing discussions on ex-ante and ex-post measures to secure such fairness. Existing discussions have primarily focused on whether to analogically apply the legal principles of new share issuance to control the disposition of treasury shares to friendly third parties, particularly during disputes over management control. A key basis for this analogy was whether the economic effects of treasury share disposition and new share issuance are identical. While judicial precedents rule that the economic effects differ—thus precluding the analogical application of new share issuance procedures—this paper argues that although the economic effects are identical, the applicability of such procedures remains a matter of policy. If the disposition of treasury shares cannot be controlled ex-ante through this analogical application, an ex-post remedy could involve claiming damages against directors (or representative directors) for dispositions made at unfair prices. However, a review of current legal applications reveals many instances where liability for damages is denied or the amount of damages is reduced. Next, one might consider the company asserting the invalidity of an unfair treasury share disposition itself; however, legal grounds for a company to claim the invalidity of its own transaction are fraught with difficulties, except in cases of abuse of representative power. It is hoped that these existing discussions on ex-ante and ex-post measures for securing fairness in treasury share disposition, along with evaluations of their effectiveness, will be reflected in the amendment of the Commercial Act.