에버랜드 전환사채 헐가발행 사건 대법원 판결(2007도4949)의 중대한 오류

Abstract

No 2007Do4949 sentenced by the Supreme Court on 2009. 5. 29 is on so-called the Everland case. The facts of the Everland case can be summarized as follows: The issuance of convertible bonds of the Everland Co. Ltd was made a resolution at a giveaway price in the board of directors by the representative director and managing director. The preemptive right on the convertible bonds was given to shareholders. But the large majority of shareholders gave up subscription. The board decided to issue the convertible bonds not subscribed by the existing shareholders to third party at the same price and conditions. The third party were the son and daughters of the chairman of the Samsung Group. They afterward converted the convertible bonds into the shares of the Everland, and became the largest shareholder of the Everland. In this case the Supreme Court declared that the representative director and managing director should not be punished a criminal breach of trust against the issuing corporation. The core of the Supreme Court Decision(2007Do4949) is as follows: In case shareholders are granted the preemptive right to subscribe, the director doesn't breach the criminal fiduciary duty even when convertible bonds are issued at a giveaway price or an unfairly low price. On the contrary, in case convertible bonds are issued to a third party at a giveaway price or an unfairly low price, director should be punished a criminal breach of trust against the issuing corporation. The author argues that this Supreme Court Decision(2007Do4949) have two serious mistakes. One is that Supreme Court Decision doesn't discriminate breach of the criminal fiduciary duty from damage of a corporation. The other is that Supreme Court Decision doesn't discriminate damage of a corporation from damage of shareholders. This case review analyzes that these mistakes are harmful both economic criminal law and business law.