2011년 개정 상법 기준 회사 설립절차에 대한 한글/영문 상법규정

2011년 개정 상법 기준 회사 설립절차에 대한 한글과 영문 상법규정을 올려 놓습니다. 업무에 참조하시기 바랍니다.

2011년 개정 상법 기준 회사 설립절차에 대한 한글과 영문 상법규정을 올려 놓습니다. 업무에 참조하시기 바랍니다.

회사 개관 PART III COMPANIES

CHAPTER I COMMON PROVISIONS

1. 법에서 특정한 날부터 일정한 기간 전에 공고하도록 한 경우에는 해당 특정한 날

1. ■ Article 288 (Promoters)

1. Purpose;

2. ■ Article 292 (Authentication of Articles of Incorporation)

1. Class and number of shares; and

3. ■ Article 317 (Registration of Incorporation)

1. 정관의 인증년월일과 공증인의 성명

6. 개업전에 이자를 배당할 것을 정한 때에는 그 규정

4. ■ Article 306 (Change of Depository, etc. of Payment)

5. ■ Article 328 (Action for Nullity of Incorporation)

Article 169 (Definition)

The term "company" as used in this Act means an association incorporated for the purpose of engaging in commercial activities and/or any other profitmaking activities.

Article 170 (Kinds of Companies)

Companies are categorized into four kinds, namely, partnership companies, limited partnership companies, stock companies and limited liability companies.

Article 171 (Company as Juristic Person and Domicile of Company)

(1) A company shall be a juristic person.

(2) The domicile of a company shall be at the place of its principal office.

Article 172 (Incorporation of Company)

A company shall come into existence upon the registration of its incorporation at the place of its principal office.

Article 173 (Restriction on Legal Capacity)

A company shall not become a member with unlimited liability of another company.

Article 177 (Starting Point of Reckoning of Registration Period)

If any matter to be registered in accordance with this Part requires permission or authorization of government authorities, the period within which the registration should be made shall commence to run from the date of the arrival of the document of such permission or authorization.

SECTION 1 Incorporation

9. 삭제 <1984.4.10>

⑥ 회사의 전자적 방법으로 하는 공고에 관하여 필요한 사항은 대통령령으로 정한다. <신설 2009.5.28>

시행령 제3조의2 (회사의 전자적 방법으로 하는 공고) ① 법 제289조제3항 단서에 따라 회사가 전자적 방법으로 공고를 하려는 경우에는 회사의 인터넷 홈페이지에 게재하는 방법 으로 하여야 한다.

In order to incorporate a stock company, the promoters shall prepare the articles of incorporation.

Article 289 (Preparation of Articles of Incorporation, Absolute Particulars to Be Entered Therein)

(1) Each promoter shall prepare, write his name and affix his seal or sign on, the articles of incorporation, in which the following particulars shall be contained:

2. Trade name;

3. Total number of shares authorized to be issued;

4. Par value per share;

5. Number of shares to be issued at the time of incorporation;

6. Place of principal office;

7. Method of public notice;

8. Name, residence registration number and address of each promoter; and

9. Deleted.

(2) The number of shares to be issued at the time of incorporation shall be no less than a fourth of the total number of shares authorized to be issued by the company.

(3) Public notices by a company shall be given by inserting them in the Official Gazette or in a daily newspaper in which matters relating to current events are published.

1. Article 290 (Particulars of Abnormal Incorporation)

The following matters shall be effective by being stated in the articles of incorporation:

1. Any special benefits to be received by promoters and names of such promoters;

2. Name of the person who is to make a contribution in kind, the type, quantity and value of the subject-matter of such contribution in kind and the class and number of shares to be given in consideration thereof;

3. The class, number and value of the property which has been agreed to be transferred to the company after its incorporation and the name of the transferor; and

4. The expenses for incorporation which are to be borne by the company and the amount of promoter's compensation.

The articles of incorporation shall take effect upon authentication by a notary public.

주식발행사항결정

Article 291 (Determination of Matters Concerning Issuance of Shares at Time of Incorporation)

Unless otherwise provided in the articles of incorporation, the following matters in connection with the shares to be issued at the time of incorporation shall be determined with the unanimous consent among the promoters:

2. If the company is to issue shares at the price higher than the par value, the number of such shares and the price.

1. Article 293 (Subscription of Shares by Promoters)

Each promoter shall subscribe for shares in writing.

Article 295 (Payment of Subscription Price and Performance of Contribution in Kind in Promotion of Incorporation)

(1) In case where the promoters have subscribed for all of the shares to be issued at the time of incorporation, they shall without delay make full payment of the subscription price. In this case, they shall designate the bank or other financial institution at which the subscription price is to be paid and the place of payment.

(2) A promoter who is to make a contribution in kind shall, without delay, on the date fixed for the payment of the subscription price, deliver the pertinent property and, if registration, recording or the creation or transfer of a right is required, the promoter shall completely prepare the documents thereon and deliver them to the company.

Article 296 (Appointment of Officers in Promotion of Incorporation)

(1) When the payment of subscription price and the performance of contribution in kind have been completed in accordance with Article 295, the promoters shall without delay appoint the directors and auditors by a majority vote.

(2) The promoters shall have one vote per each share which they have subscribed for.

1. Article 297 (Preparation of Minutes by Promoters)

The promoters shall prepare and write their names and affix their seals or sign on the minutes of the meeting, in which the proceedings of deliberation and the results thereof shall be entered.

이사, 감사의 설립사항 보고

Article 298 (Investigation and Reporting by Director and Auditor, and Request for Appointment of Inspector)

(1) The director and auditor shall, without delay after their appointment, investigate whether or not all matters concerning the incorporation of the company have complied with the relevant acts, subordinate statutes and the articles of incorporation, and report the results thereof to the promoters.

(2) Any director and auditor who was a promoter, or is now a contributor in kind or a party to a contract whereby the company is to take over a property after its incorporation shall not participate in the investigation and reporting mentioned in paragraph (1).

(3) If all of the directors and auditors are subject to paragraph (2), the directors shall have a notary public make the investigation and reporting mentioned in paragraph (1).

(4) In case where the articles of incorporation provide for any matter set forth in Article 290, the directors shall request the court to appoint an inspector for the purpose of conducting the investigation on such matter: Provided, That this shall not apply to the case of Article 299-2.

1. Article 299 (Investigation and Reporting by Inspector)

(1) The inspector shall investigate any matter set forth in Article 290 and whether or not the contribution in kind has been performed pursuant to Article 295 and shall report the results thereof to the court.

(2) The inspector shall, without delay after he has prepared a report of investigation under paragraph (1), deliver a copy of it to each promoter.

(3) Where any statement in the report of investigation is contrary to the true fact, the promoters may submit an explanatory note thereon to the court.

Article 299-2 (Certification of Contribution in Kind, etc.)

With respect to the matters set forth in subparagraphs 1 and 4 of Article 290 the investigation and reporting by a notary public may substitute for the investigation of the inspector mentioned in Article 299 (1) and with respect to the matters set forth in subparagraphs 2 and 3 of Article 290 and the performance of contribution in kind pursuant to Article 295, the appraisal by

a certified appraiser may substitute for the investigation of the inspector mentioned in Article 299 (1).

In this case, the notary public or appraiser shall report on the results of the investigation or appraisal to the court.

1. Article 300 (Disposition of Alteration by Court)

(1) If the court has found any of the matters falling under Article 290 to be improper after examining the investigation reports by an inspector or notary public or the results of appraisal by an appraiser and an explanatory note by the promoters, it may alter such matters and notify each promoter thereof.

(2) A promoter who disagrees to an alteration under paragraph (1) may revoke the subscription of his shares. In this case, the procedures for the incorporation may be continued by amending the articles of incorporation.

(3) If no promoter revokes the subscription of his shares within two weeks after receiving the notification from the court, the articles of incorporation shall be deemed to have been amended in accordance with the notification.

현물출자나 변태설립사항 있을 때 추가보고

②제1항의 설립등기에 있어서는 다음의 사항을 등기하여야 한다. <개정 2009.1.30>

(1) The registration of incorporation of a stock company shall be effected within two weeks from the date on which the procedures in accordance with Articles 299 and 300 have been completed, in case where the promoters subscribed for all the shares issued at the time of incorporation, and within two weeks from the date on which the inaugural general meeting has been closed or

from the date on which the procedures in accordance with Article 314 have been completed, in case where the promoters have offered shares for subscription.

(2) For the registration under paragraph (1), the following matters shall be registered:

1. Matters set forth in Article 289 (1) 1 through 4, 6 and 7;

2. Total amount of the capital;

3. Total number and class of the outstanding shares and contents and number of each class of shares;

3-2. Provision that the transfer of shares shall be subject to the approval of the board of director, if so determined;

3-3. Provision under which stock option is granted, if determined;

3-4. Places of branch offices;

4. Duration or reasons for dissolution of the company, if determined;

5. Dividend of interest prior to the commencement of business, if determined;

6. Redemption of shares out of profits to be distributed to shareholders, if determined;

7. Matters set forth in Article 347, if convertible shares are issued;

8. Name and residence registration number of inside director, outside derector, other director who don't be engaged in the regular business and auditor;

9. Name, residence registration number and address of the representative director;

10. Provision that two or more representing directors shall jointly represent the company, if so determined;

11. Trade name and the principal office of a transfer agent, if any; and

12. Name and resident registration number of each auditor of the audit committee, if such committee has been set up.

(3) Matters set forth in paragraph (2) 1, 4, 9 and 10 shall be included in the registration to be made in case of establishing a new branch or transferring a branch, at the place of such newly established branch or the changed place of such transferred branch.

(4) Articles 181 through 183 shall apply mutatis mutandis to the registration of a stock company.

정관 또는 발기인의 주식발행사항결정

②주식청약서는 발기인이 이를 작성하고 다음의 사항을 기재하여야 한다. <개정 1962.12.12, 1984.4.10, 1995.12.29>

Article 301 (Offer of Shares in Case of Subscriptive Incorporation)

Where the promoters do not subscribe for all the shares issued at the time of incorporation, they shall offer shares for subscription.

Article 302 (Offer of Share Subscription and Particulars to Be Entered in Subscription Form)

(1) A person who intends to subscribe for shares shall complete two copies of subscription form, in which the class and number of shares for which he is to subscribe and his address are stated, and shall write his name and affix his seal or shall sign thereon.

(2) The promoters shall prepare the subscription form, in which the following particulars shall be stated:

1. Date on which the articles of incorporation were authenticated, and the name of the notary public;

2. Matters set forth in Articles 289 (1) and 290;

3. Duration or reasons for dissolution of the company, if determined;

4. Class and number of shares subscribed by promoters;

5. Matters set forth in Article 291;

5-2. A provision that transfer of shares shall be subject to the approval of the board of directors, if so determined;

6. Distribution of interest prior to the 당 commencement of business, if determined;

7. Redemption of shares out of profits to be distributed to shareholders, if determined;

8. A statement to the effect that the subscription of shares may be cancelled if the inaugural general meeting is not closed by a fixed date;

9. Bank and any other financial institution in charge of the payment of the subscription price and the place of payment; and

10. Name, address and business office of a transfer agent, if any.

(3) The proviso of Article 107 (1) of the Civil Act shall not apply to the offer of share subscription.

1. Article 303 (Duties of Subscribers)

A person who has subscribed for shares shall be responsible for the payment of the subscription price in accordance with the number of shares allotted to him by the promoters.

Article 304 (Notice or Peremptory Notice to Subscribers, etc.)

(1) Any notice or peremptory notice to a person who has subscribed for shares or who has applied for subscription for shares may be delivered to his address stated in the certificate of the share subscription or the subscription form for shares or to the address notified to the company by such person.

(2) The notice or peremptory notice under paragraph (1) shall be deemed to have delivered at the time when it would normally have arrived.

1. Article 305 (Payment of Subscription Price for Shares)

(1) When all the shares to be issued at the time of incorporation have been subscribed for, the promoters shall without delay have the subscription price be fully paid by the subscribers.

(2) The payment under paragraph (1) shall be made at the place as prescribed in the subscription form for shares.

(3) Article 295 (2) shall apply mutatis mutandis to the cases under paragraph (1).

A change of the depository at which the subscription price shall be kept and of the place of payment shall be subject to approval of the court.

Article 307 (Procedures for Forfeiture of Subscriber's Rights)

(1) In case where a person who has subscribed for shares fails to make the payment in accordance with Article 305, the promoters shall fix a certain date and shall, before two weeks prior to such date, give such person a notice to the effect that such person's right shall be forfeited if he fails to make the payment by such date.

(2) If the person who has received the notice under paragraph (1) fails to perform the payment by such date, his rights shall be forfeited. In this case, the promoters may again offer such shares for subscription.

(3) Paragraphs (2) and (3) shall not affect any claim for damages against the person concerned who has subscribed for shares.

Article 318 (Certification and Liability by Depository for Paid Subscription Price)

(1) A bank and other financial institution which have had the custody of the subscription price paid shall deliver the certificate as to the amount of money which are in its custody on demand by a promoter or a director.

(2) The bank and other financial institution under paragraph (1) may not assert, in respect of the amount of money duly certified to be in its custody, non-performance, in whole or in part, of such payment or any restriction upon the return of such amount against the company.

Article 319 (Transfer of Rights Deriving from Share Subscription)

The transfer of any right deriving from the subscription of shares shall not be effective against the company.

Article 320 (Restrictions on Asserting Nullity or Revocation of Share Subscription)

(1) After the company comes into existence, no subscriber of shares may assert the nullity of his subscription by reason of defects in any requirement for the subscription form for shares, nor may revoke his subscription on the ground of fraud, duress or mistake.

(2) The same shall apply even before the company comes into existence, if the subscriber has attended, and has exercised his rights at, the inaugural general meeting.

Article 321 (Promoter's Warranty Liability for Subscription and Payment)

(1) In case where, after the company comes into existence, any shares issued at the time of incorporation of the company have not been subscribed or the subscription for certain shares has been revoked, the promoters shall be deemed to have subscribed for such shares jointly.

(2) In case where, after the company comes into existence, shares upon which payment of the subscription price in accordance with Article 295 (1) or 305 (1) has not been completed, the promoters shall make such payment jointly and severally.

(3) Article 315 shall apply mutatis mutandis to the cases under paragraphs (2) and (3).

②제298조제2항 및 제3항의 규정은 제1항의 조사와 보고에 관하여 이를 준용한다. <개정 1995.12.29>

③ 삭제 <1995.12.29>

1. Article 308 (Inaugural General Meeting)

(1) In case where the payment pursuant to Article 305 and the performance of the contribution in kind have been completed, the promoters shall without delay convene an inaugural general meeting.

(2) Articles 363 (1) and (2), 364, 368 (3) and (4), 368-2, 369 (1), 371 (2), 372, 373, 376 through 381 and 435 shall apply mutatis mutandis to the inaugural general meeting.

1. Article 309 (Resolutions at Inaugural General Meeting)

At the inaugural general meeting, resolutions shall be adopted by affirmative votes of at least two-thirds of the total votes of attending subscribers and also by affirmative votes representing a majority of the total number of shares which have been subscribed.

1. Article 311 (Reporting by Promoters)

(1) The promoters shall report in writing on the matters relating to the incorporation of the company, at the inaugural general meeting.

(2) The written report under paragraph (1) shall specify the following:

1. General circumstances concerning subscription of shares and payment of subscription price; and

2. Actual conditions regarding matters mentioned in Article 290.

1. Article 312 (Election of Officers)

At the inaugural general meeting, directors and auditors shall be elected.

Article 313 (Investigation and Reporting by Directors and Auditors)

(1) The directors and auditors shall, without delay after their inauguration, investigate whether all matters concerning the incorporation of the company have complied with the relevant acts, subordinate statutes and the article of incorporation and shall report the results thereof to the inaugural general meeting.

(2) Article 298 (2) and (3) shall apply mutatis mutandis to the investigation and reporting under paragraph (1).

(3) Deleted.

Article 316 (Resolution for Amending Articles of Incorporation and Abandoning Incorporation)

(1) At the inaugural general meeting, a resolution calling for amending the Articles of incorporation or abandoning the incorporation of the company may be adopted.

(2) A resolution under paragraph (1) may be adopted even where such matter has not been stated in the convocation notice for the meeting.

Article 310 (Investigation in Case of Abnormal Incorporation)

(1) If any matter set forth in Article 290 has been determined by the articles of incorporation, the promoters shall request the court for the appointment of an inspector to investigate such matters.

(2) A written report of the inspector mentioned in paragraph (1) shall be submitted to the inaugural general meeting.

(3) The proviso of Article 298 (4) and Article 299-2 shall apply mutatis mutandis to the investigation under paragraph (1).

Article 314 (Alteration of Matters Concerning Abnormal Incorporation)

(1) If the inaugural general meeting finds any of the matters falling under Article 290 to be improper, it may alter them.

(2) Article 300 (2) and (3) shall apply mutatis mutandis to the cases under paragraph (1).

1. Article 315 (Claim for Damages against Promoters)

Article 314 shall not affect any claim for damages against the promoters.

②제186조 내지 제193조의 규정은 제1항의 소에 준용한다. <개정 1984.4.10>

(1) If promoters have neglected to perform their duties in connection with the incorporation of the company, they shall be jointly and severally liable for damages to the company.

(2) If promoters have failed to perform their duties willfully or by gross negligence, they shall be jointly and severally liable for damages to third persons.

Article 323 (Joint and Several Liability of Promoters and Officers)

If directors or auditors have neglected to perform their duties under Article 313 (1) and are thereby liable for damages to the company or to third persons and if promoters are also liable therefor, the directors, auditors and promoters shall be liable for such damages jointly and severally.

Article 324 (Release of Promoter's Liability and Derivative Suits by Shareholders)

Articles 400, and 403 through 406 shall apply mutatis mutandis to promoters.

If an inspector appointed by the court has failed to perform his duties willfully or by gross negligence, he shall be liable for damages to the company or to third persons.

Article 326 (Promoter's Liability where Company Fails to Come into Existence)

(1) If the company fails to come into existence, the promoters shall be jointly and severally liable for all acts conducted in connection with the incorporation of the company.

(2) In case of paragraph (1), the promoters shall be responsible for any expenditures incurred in connection with the incorporation of the company.

A person who has consented to have his name and any statement indicating his participation in the incorporation of the company entered in the application form for subscription and/or in any other documents which have been issued in connection with the offering of shares for subscription shall assume the same liability as that of a promoter.

(1) The nullity of the incorporation of a company may be asserted only by the shareholders, directors or auditors and only by means of an action which shall be filed within two years from the date on which the company comes into existence.

(2) Articles 186 through 193 shall apply mutatis mutandis to the action mentioned in paragraph (1).

1. Article 322 (Promoter's Liability for Damages)

1. Article 325 (Inspector's Liability for Damage)

1. Article 327 (Liability of Self-styled Promoter)

6. 청약에 적용되지 않는 민법 조문

진의 아닌 의사표시(민법 제107조) — 의사표시는 표의자가 진의 아님을 알고 한 것이라도 그 효력이 있으나, 상대방이 표의자의 진의 아님을 알았거나 알 수 있었을 경우에는 무효로 합니다(제1항). 주식인수의 청약에는 이 단서가 적용되지 않으므로, 회사가 청약자의 진의 아님을 알았더라도 청약은 유효합니다.