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KCI등재 학술저널

위법한 주식 소각으로 인한 이사의 손해배상책임에 관하여 주주대표소송을 제기할 경우 나타나는 쟁점에 대한 고찰

대법원 2021. 7. 15. 선고 2018다298744에 나타난 쟁점을 중심으로

These cases concerns that liability for damages of director committed illegal stock retirement and the necessity of preceding irrevocable judgment to invalidity of the reduction of capital. Commercial law regulates two ways regarding stock retirement. First way is according to the rules the reduction of capital, second way is only by board resolutions. Conforming to Article 438 of the Commercial Act regarding acquisition of treasury stock and stock retirement is first way. In this case a company can acquire treasury stock without comforming to Article 341 of the Commercial Act, so a company can acquire treasury stock using its funds exceed the dividendable profit. In this case a company have to do special resolution in meeting of stockholders, procedures for Protection of Creditors, Notice of submission of stock certificates etc. If a director violates related regulations regarding invalidity of the reduction in acquisition of treasury stock and stock retirement, he intentionally or negligently violates related regulations and he should be liable for property damages according to Article 399 of the Commercial Act. In this case whole payment for acquisition of treasury stock is a company's suffered amount of property damages. These property damages suffered by payment for acquisition of treasury stock are irrelevant to invalidity of the reduction, so liability for damages of director committed illegal stock retirement can be claimable without preceding irrevocable judgment on invalidity of the reduction of capital. In second case, because acquisition of treasury stock is not always connected to stock retirement, these two proceedings can be divided. The Commercial Act regarding these two proceedings are separated. Acquisition of treasury stock is prescribed by Article 341 of the Commercial Act, on the another hand stock retirement is prescribed by the proviso to Article 343 (1) of the Commercial Act. in this case stock retirement can be done only by board resolutions, so stock retirement does not hardly counts. Alternatively it is imporeant whether a company has complied with the Commercial Act in acquisition of treasury stock. If a director violates related regulations in acquisition of treasury stock, he intentionally or negligently violates related regulations and he should be liable for property damages according to Article 399 of the Commercial Act. If a company acquires treasury stock using its funds exceed the dividendable profit, the director who executed this direct should be also liable for property damages according to Article 341 (4) of the Commercial Act.

Ⅰ. 대상판결의 내용과 쟁점

Ⅱ. 자본금 감소규정에 의한 소각과 자기주식

의 소각

Ⅲ. 감자무효의 판결 확정과 이사의 손해배상

책임

Ⅳ. 제소청구와 주주대표소송

Ⅴ. 결어

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