신주 등 발행의 공정성에 관한 연구

Abstract

The causes of right to injunction to issue shares are the violation of the relevant acts, subordinate statutes or the articles of incorporation or in a remarkably unfair manner. The concept of fairness is reflected in the articles of Commercial Act such as shareholder's preemptive right and the allotment of new shares to other persons than the shareholders. The phrase of "in a remarkably unfair manner" means that an issuance violates no relevant acts,subordinate statutes or the articles of incorporation, however, it causes damage to the relevant stakeholders. To judge whether an issuance is fair or not, it is useful to think about the equal treatment rule between shareholders and shareholder's duty of fiduciary(loyalty). The issuance by an allotment of new shares to third person restricts only to the case for the achievement of business purpose. The issuance should have not only the necessity for management purpose but also the proportionate between shareholder's interest and profits gained by company. The court has applied the reasons for nullification of issuance of new share to the reasons which make convertible bonds void. I think it would be more rational to separate the issuance of convertible bond and exercise the right to demand issuance of new shares. The convertible bond may be abused in the situation of struggling for management right and in that case claim should be limited just to the exercise the right to demand issuance. The poison pill in the bill, I think, does not be compatible with the Commercial Act and practices. They have articles and decisions to protect the shareholder’s preemptive right strongly. In the respect of fairness the poison pill might violate the interest of shareholders too excessively. It should be amended to hold rigid necessity for corporation or shareholders as a whole and proportionate between benefit and damage to prevent the abuse by management.