失權株에 관한 法的 爭點의 檢討 - 최근의 判例를 소재로 하여

Abstract

When a corporation decides to issue new shares or convertible bond(hereinafter “new shares”) to the existing shareholders, pro rata for an amount less than real value of the stock, but some shareholders decide not to purchase(=subscribe) the new shares, what should do the directors regarding the unsubscribed shares to comply their duty of care and loyalty to that corporation?For example: the real(=fair) value of a share of X corp.=100 Won, the par value= 50 Won; X corporation issues 1,000 shares for 70 Won to the existing shareholders, but only 300 shares are purchased by the existing shareholders. In that case, do the directors have the discretion or power to issue the residual unpurchased shares(700 shares) for the same price(=70Won) to the non-shareholders(=outsiders)? Do the directors owe a duty to change the price of the issuance for those shares, or not to issue the unpurchased shares? If the unpurchased shares are offered to the non-existing shareholders for the same price, the existing shareholders face the risk of dilution of their shares. This paper reviews several issues emerging regarding the unsubscribed shares. Korean Supreme Court(hereinafter “KSC”) rendered a decision in Samsung Everland Case that directors have the discretion whether they issue the unpurchased shares(=700shares) or not, to whom they could issue those shares, even for the same price, 70Won). In 2012, another KSC decision followed that theory. Part II reviews the reasoning of those cases. Directors owe a duty of care or loyalty to resettle the price of the unsubscribed shared, if the shares are purchased by non-existing shareholders. In addition to, in Shinsegae Department Case, defendants-directors decided not to purchase the new shares, issued by the corporation's wholly owned subsidiary, and the shares were purchased by one of the defendants. Shareholders have taken the position that the deal constitute (1) self-dealing transaction, (2) competition with the corporation, and (3) usurpation of business opportunities. In 2011Da57869 Case, KSC have not accepted their arguments, and rendered a decision that directors have not breached their duty of care and loyalty. In 2011 Cheil Industries Case(2011Na2372), Daegu High Court found differently. Part III reviews those findings. Recently, the Korean Capital Market and Financial Industries Act has inserted the new provisions regarding the unsubscribed shares in listed corporation. According to it, the unsubscribed shares should be repurchased only condition that the price is fair. This paper suggests that the same rule could be applied for the non-listed corporation.