消却한 株式의 再發行 可能性

Abstract

A part of the issued shares of a corporation can be reduced or redeemed for the purpose of capital reduction or redemption of the redeemable stocks. How to characterize the legal status of such redeemed shares has been long debated. One explanation is that the redeemed shares constitute the unissued shares among the authorized capital which may be reissued at the discretion of board of directors(reissuable theory), while another explanation is that the redeemed shares may not be reissued since the power of the board for issuance of shares authorized by the article has already been exercised(non-reissuable theory). In other words, the question centers on the decision whether the reduced or redeemed shares can be restored to the status of authorized but unissued shares. Originally, this issue arose in Japan as it introduced the so-called “authorized capital” system in its reformed Commercial Code of 1950, which in turn had its roots in the U.S. corporate law. And the same issue appeared in Korea as well when the new Commercial Act of 1962(“CA”) of Korea introduced the same authorized capital system modelled after that of Japan. The majority of Japanese commercial law scholars have followed the non-reissuable theory, which has also been accepted by the Korean commercial law scholars. While the non-reissuable theory can be said to have some reasonable grounds in Japan where the preemptive right for the newly issued shares is not recognized. The same rationale, however, does not necessarily apply in Korea. If the board of directors issues new shares for the redeemed amount in Japan, the existing shareholders’ equity ratio must be diluted. But in Korea where the shareholders can exercise, in principle, their preemptive right for the newly issued shares, the newly issued shares, even though issued at the board’s discretion, should be distributed to the existing shareholders in proportion to their holdings. Therefore, the issuance of new shares for the redeemed shares carry different implications on shareholders' proportionate interest in Japan and Korea. In this article, the author identifies the legal issues arising from the non-reissuable theory based on the relevant provisions of the CA and presents several theoretical and practical reasons to show that the reissuable theory provides a reasonable solution to the problems posed.