증권거래소가 행하는 상장결정 및 상장폐지결정의 법적 의미

Abstract

What is the legal nature of the listing decision and the delisting decision that The Korea Exchange(“The Exchange”) makes? The answer of this question is significant in that the form of lawsuit is determined under it. If the legal nature of the delisting decision comes under “administrative measure” regulated in Administrative Litigation Act 2 ①, companys and investors into such company should initiate administrative lawsuit against The Exchange. If not, they should raise civil lawsuits. So far, there have been several arguments about the legal nature of the delisting decision that The Korea Securities Dealers Association (KSDA) or The Exchange makes. And judical precedents of the Supreme Court and The Constitutional Court were established. Now although the nature of Exchange is changed from membership system into a stock company, it is thought that the previous arguments are also available. The latest lower court decisions follow also the former precedents of the Supreme Court. This writer has come to the conclusion that the legal nature of the delisting decision of Exchange doesn’t come under “administrative measure” as object of an administrative lawsuit, because the Exchange doesn’t fall under “administrative office” as the subject of an “administra- tive measure”. This writer thinks that the delisting decision has the legal nature as declaration of intention that The Exchange terminates the listing contract between itself and the listing company. Up to now, on the contrary, it has not been debated about the legal nature of the Exchange’s listing decision. The reason is seemingly thaught to this writer that the applicant for listing doesn’t engage in controversy against the Exchange about the Exchange’s disapproval of listing. This writer has come to the conclusion that the Exchange’s listing decision has the legal nature as declaration of intention of consent for the applicant’s listing application.