실권된 주식.전환사채의 제3자 배정에 관한 문제점

Abstract

The company, when will increase the capital, may issue new stocks by a resolution of the board of directors under the conditions as provided by the articles of incorporation, the existing shareholders have the preemptive rights which, when applicable, requires a pro rata offering of new stocks. The convertive bonds involve the privilege, at the option of the holder, of converting it into share. These bonds have been frequently issued, because they combined the safety of creditor status with opportunity for possible speculative gain which increase in price of shares beyond conversion price. When the company issue convertive bonds, the existing shareholders have the preemptive rights which requires a pro rata offering of convertive bonds in Korea Commerce Law. And in order to issue new stocks to third persons, it needs the providing of the articles of incorporation on this and the business purpose. In the issuing of the convertive bonds to third persons, directors must comply as provided by the articles of incorporation. but if no providing of the articles, directors must perform by a special resolution of the shareholders meeting. Therefore the forfeited stocks should be subscribed under the conditions as provided by the law and the articles of incorporation. And the forfeited convertive bonds, if it is not any provision of the articles of incorporation on the issuing, should be subscribed by a special resolution of the shareholders meeting. If not so, the issuing price of the forfeited stocks or convertive bonds must be raised more than the issuing price which the directors set down first for shareholders.