주주의 신주인수권의 침해에 관한 고찰

Abstract

As corporations aims at profits, they raise funds from new share issues, flotation of debentures and financial institutions according to necessity of fund raising for their management. For flotation of debentures, fixed interest rate is provided, liability is exempt in case of reimbursement, and no need to distribute profits occurs. In particular,new share issue contributes to expansion of human and physical organizations as shareholders as well as equity capital of corporation increase. For the new share issue, the commercial law admits the subscription right as a natural right(Section 1, Article No. 418). If the subscription right is given to shareholders, voting rights of existing shareholders decline, dividend of remaining property decreases and stock prices slump, which causes financial profits to decrease. Therefore, as opposition between safeguarding of interests and dynamic fund raising occurs when new shares are issued to the third party, a reasonable safeguard system for shareholders and corporations is needed. Thus, for actual justification of subscription rights, Article No. 418 of the Commercial Law regulates: “shareholders shall have rights to buy shares according to the number of their shares unless opposite regulations are indicated in the statue” It indicates that it is natural for shareholders to have subscription rights. To safeguard the rights of shareholders when the subscription rights are limited or excluded, their rights can be relieved through regulations, execution of claim right and a nullity suit.