자기주식 처분과 신주발행이론 - 신주발행유지청구권을 중심으로 -

Abstract

Treasury Share is like a chameleon. It raises lots of issues when a company acquires or disposes it respectively. However 2011 Commercial Code regulates its acquisition. It keeps silence on its disposal. There have been heavy concerns on such silence. Such concern has been realized. Such disposal is quite remote from disposal of a corporate asset but is more similar to issuance of new shares. Shares are going through reduce in voting power and stock value. Thus views that we should apply theories on issuance of new shares to such disposal are prevailing. Main issue is on preemptive right. Our court does not agree on the preemptive. More often then not it shows its sight such disposal as an asset disposition. The shareholders with the preemptive right can argue the disposal on the strong basis of its substantial right. However, I hold my judgment on such preemptive issue because it seems like a policy issue. Rather focus is given more on procedural issues. Notice provision in the case of issuance to the third party is of significance given that the provision provides the opportunity to argue the disposal with the shareholder recognized such disposition. Rights to Injunction is also material under which the shareholder is able to hold the unfair disposal. Such right is the right protected in injunction cases. Most of the treasury stock deal involves low price aimed at either defense of or succession of a controlling power. I review very carefully whether such case met conditions of rights to injunction. New and additional codification is desirable because it is more clear to all. In the course of such review, I come to have a few regulatory thoughts on such disposal. In the first place, change in control should be restricted to a certain degree given that influence on shareholders is huge in that case. Secondly, the shareholders without preemptive right have only the right to argue their damages in stock price. Regulation on such stock price is necessary. Thirdly, the shareholders have to have plenty of time to file an suit for an injunction. From the date of disposition of treasury to closing date, there must be at least two weeks. Finally, as aforementioned in the beginning part. more exact and precise disclosure is of essence.