상환전환우선주의 발행현황과 문제

Abstract

Recently, Redeemable Convertible Preferred Stock and Related Problems(hereinafter, the "RCPS") has become a major method for corporations to raise capital. This trend was caused by the recent economic crisis when the corporations have suffered difficulties in raising capital by issuing corporate bonds. Also, changes in the legal environment, meaning that issue of various class shares has been allowed through the amendment to the Commercial Code in 2011, has attributed to such increase in the issuance of the RCPS. As the newly adopted or revised provisions in the 2011 amendment are not functionally structured and the legislation intention is not made clear, there is confusion in interpreting concerned provisions. Among other problems or confusion, class shares is one of the examples and particularly, the RCPS stands amid such controversy. The RCPS needs to be reviewed from the view of a new trend that shares and bonds are approaching or combined together in the capital market. It is presumable that the situation where shares are more and more approaching to bonds could be accelerated because the issuance of class shares combining various rights would be more prevalent. An issue regarding the concept or definition of class shares or whether ordinary shares is considered one type of class shares is being repeated in reviewing on redeemable shares and convertible shares. It is provided that class shares only excluding redeemable shares and convertible share can be issued as redeemable shares. However, such provision is causing confusion in the interpretation of such provision. This issue is directly related to the issue of whether the RCPS can be issued under the current Commercial Code. It depends on the legal structure of the RCPS to determine whether the issuance of the RCPS is prohibited or not based on the wording in parenthesis of Article 345, Paragraph 5 under the Commercial Code. The provisions on the redeemable shares are not clear and as such, the issuance of the RCPS cannot be deemed null and void based on such unclear provisions. The equal treatment among shareholders can be another issue in the RCPS since the shareholder status would be sensitively affected according to calculation of redeemable payment, types of payment method, convertible reasons, convertible ratio, etc. Further, it needs to be reviewed on the legal status of the RCPS which has both characteristics of shares and bonds. The Commercial Code(strictly speaking, the Company Act) should paly a role in providing legal ground for the structure of shares combining various rights reflecting corporations' needs. However, the purposes of the regulation regarding the issuance of shares under the Commercial Code should stress on providing guidelines for protection of shareholders or investors and resolution of conflict of interest among various stakeholders. Accordingly, corporations shall be granted discretion to the extent that the corporations can determine specific terms and contents for the issuance.