현물출자시 주주의 신주인수권의 제한

Abstract

Corporations issue new shares to raise capital. If the new shares are allotted to a third party other than shareholders, shareholders’ interests will be damaged. Therefore, the Korean Commercial Code Art. 418 regulates shareholders’ preemptive rights. But the shareholders’ preemptive right could be deprived by provision in the article, if there is a necessity to achieve the business purposes of the corporation. In case of in-kind contribution it is controversial whether the Korean Commercial Code Art. 418 does not apply. In this case, there is a view that the board of directors may exclude the preemptive rights of the shareholders. However the Korean Commercial Code Art. 418 shall be applied in the case of in-kind contribution. So the provision of the article or the special resolution of the shareholders’ meeting that limit the preemptive rights of shareholders is required in the case of in-kind contributions. In addition to, the in-kind contribution must be necessary to achieve the business purposes of the corporation.