증권거래소가 제정한 상장규정의 법적성격 및 상장규정상 합병요건 규정의 유효성

Abstract

When a kosdaq listed company will merge with an unlisted corporation, the Korea Exchange (the exchange) askes the unlisted corporation to satisfy requriements which is described in kosdaq market listing regulation §19(1)2 based on the securities and exchange act(the Act). It is the problem whether the above listing regulation has the effect as legal norm, or stipulation(having the effect of contract). In my opinion, it shall be construded that the rightful body making legal norm under korean constitutional system is restricted only to the body expressly described in the constitution as the subject of enacting legal norm. The exchange doesn't applied to the above rightful body of enacting legal norm. Therefore the above listing regulation cannot be the legal norm, but fall under stipulation of the law relating to regulating of the stipulation(the stipulation law). The above listing regulation was enacted in exceeding the limitation of the enacting purpose and empowering range of the presidential decree of the Act §84-7(3)2, so it is very unresonable to listed-company as customer of the exchange, therefore construded as invalid clause against the stipulation law §6(1)1. Besides, in case that although non listed-company in kosdaq market to intend to merge with listed-company doesn't satisfy merger requirements of listing regulation, these companys are merged, the exchange makes decision of delisting of the listed-company according to the listing regulation §38(1)17. The legal nature of the delisting decision is construded as exercising of the right of terminating of the listing contract by the Supreme Court. The above exercising of the right under listing regulation §19(1)2 and §38(1)17 is very unequal, and the exchange is endowed with the right of the terminating contract which is not described by the law. So, the above listing regulation §19(1)2 is also concluded as invalid against the stipulation law §9(2).