종류주식의 쟁점과 과제

Abstract

The Commercial Act has been revised from April 15, 2012 with the most significant amendments after its enactment. The amendment was made to around 250 provisions resulting in debates, and especially the matter of class stock was severely debated with respect to its variety due to the possibility of abusing it as a defensive measures to hostile M&A. As a result, most of class stocks that the Legal Department had considered were excluded from the last amended Act, and only one type of class stock with limiting/excluding voting right was newly adopted. However, a new issue was raised in relation to the legal nature of common stock under the revised Commercial Act, i.e. how we can differentiate common stock with class stock. There are two types of common stocks different from legal perspective:① common stock which becomes a standard stock when more than two class stocks are issued in relation to profit dividend et al based on Articles 344 to 346 of the Commercial Act; and ② common stock issued following ordinary new stock issuance process under Article 416. As class stock includes the standard stock and the other stock, ① is class stock while ②is not in corporate legal perspective. As redemption stock and conversion stock can be issued as class stock (Article 345 Clause 5, Article 346 Clauses 1 and 2), stocks that can be issued as redemption stock and conversion stock are commony stocks under ①, which is class stock, but are not common stock under ②, which is not class stock. The type of class stock is varied and each type of class stock has various functions. For example, golden stock and class voting stock, which was included in the amended Commercial Act in 2006, are important for the small sized or venture company founder to have the management right and for the investor not only to check the management right but also to succeed to business and promote venture capital investments. Despite this, those stocks were not adopted because of the possibility of abusing those as defensive measures. It is expected that new policies focusing on mid/small size companies will be established under a notion of economic democracy with the new government. It needs to be perceived that class stock can be an important measure to solve issues of mid/small size companies, and additional legislation shall be made sooner or later as to class stock, which was considered in 2006 and 2009 amendments, in a manner to maximize its effectiveness while minimizing its backfires.