Law and Taxation of Corporate Merger and Division in Korea

Abstract

Traditionally the concept of tax-free corporate reorganization has not existed in Korean law, and the rules for merger and division were pervaded by a mystic theory of the fusion of juridical personalities extrapolated from corporate law metaphysics, imported from an old and now defunct German theory. This metaphysical theory proved irrelevant during the economic crisis and the subsequent law reform following the economic crisis of 1997 and 1998, which introduced a tax-free merger, division and other forms of corporate restructuring. This paper reviews the overall structure of and specific issues about the new tax rules in interaction with new corporate law. It shows that the new rules are based on a juxtaposition of real world problems and metaphysical legal dogma, combined with a superficial and dogmatized understanding of foreign laws. The final outcome of current law is a mere importation of the hard shell of foreign legal concepts, which fails to address the real world problems in the right way.