일본 회사법상 거부권부종류주식에 관한 고찰

Abstract

The refusal right of class shares is a type of golden share – a legal device that is commonly used in some European countries – and was introduced in 2001 under the revised Commercial Code of Japan. This means that, within Japan’s current legal framework, a company can adopt articles of incorporation under which it can be stipulated that for certain important matters to be decided it is necessary to obtain approval of a class shareholder meeting as well as approval of both a general meeting of shareholders and a board of directors meeting. Although there was much debate within Japan’s business and financial communities, Japan finally decided to adopt the refusal right of class shares because it was expected to provide the shareholders with more effective abilities for raising capital and thus block hostile takeover attempts. This article traces the historical background of Japan’s adoption of the refusal right of class shares, examines cases where this legal device was actually employed by Japanese corporations, and attempts to discover what lessons Korea’s business and financial communities may learn from Japan’s experience. Chapter II reviews the chronology of Japan’s adoption of the refusal right of class shares and the rationale behind it. Chapter III lists in detail the regulations relating to the legal device. Chapter IV discusses the issuance procedure and evaluation process. Chapter V presents cases where this legal device was actually used by listed firms in Japan. Chapter VI looks at expiration of the refusal right and the effects of exercising the refusal right. Finally, Chapter VII provides a conclusion. The study finds that even though it has already been fifteen years since Japan introduced this legal device with good intentions for the country’s business and financial communities, it is difficult to find actual cases where it has been employed by Japanese companies. This means that one should always remember (in case that Korea decides to revise its Companies Act) that a company is a capital entity where the capital majority rule dominates, rather than contracts between investors. This, in turn, suggests that one may recognize that even in cases where a certain regulatory measure limiting this basic nature of modern enterprises is taken, its utilization is limited to a great extent.