2011년 개정상법에 의한 종류주식 발행의 법적 문제

Abstract

The revised Commercial Act of 2011 has introduced class shares, which refers to stock that differs in its content of rights. Those rights are preferential of unfavorable to common stock or another class stock, in relation to right to dividends, voting, recourse or conversion. Class shares are designed to increase funding or the distribution, succession or defense of management. To make the best use of these shares, it is necessary to understand them, however, the articles of class shares are unclear or incompatible with each other. First, there is a question whether “class shares” in Article 346 paragraph ① and Article 345 paragraph ① include the common stock. In the former it could be constructed affirmatively, but in the latter, negatively. While these Articles have the same terms, they are constructed differently. In the case of the former, “class shares” should be amended into “shares”, while in the latter this should be revised so that common stock is not included. Second, I think it should be void to decide the condition of voting based on a certain percentage of holding shares. The revised Commercial Act says that the condition of voting should be decided by matters. Third, Article 345 paragraph ⑤ should be understood as not applying to convertible class stock with recourse right and Article 345 paragraph ④ prohibits the issue of class stock with recourse right added to convertible right. Fourth, when existing stock changes to class stock with recourse right or class stock with convertible right, the procedure of changing the articles of association and class shares meeting are not sufficient to protect holders of the existing shares. As this change would have a significant impact on the interests of shareholders' rights, these provisions must be revised to require the consent of all shareholders.