종류주식 간의 이해조정

Abstract

§§ 435, 436 of the Korean Commercial Code(hereinafter referred to as ‘KCC’) require approval of a general meeting of the specific class of shareholders whose rights are adversely varied by mergers or amendments of the articles of incorporation. Under such statutory protective mechanism(class-voting), the focus is put on the legal interpretation of adverse variation of class rights : when are the rights attached to one or more classes of shares adversely varied by mergers or amendments of the articles of incorporation? The KCC says little about it; there have been few academic analyses to this question; still worse, there are only two court cases. In this respect relevant foreign legislations, theories and cases are comparatively studied in this paper, which may be helpful to catch the meaning of ‘an adverse variation of class rights.’ The Author concludes as follows. Firstly, there must exist an adverse variation of class rights when the proposed amendments of articles abrogate, reduce or dilute any right attached to a certain class of shares in proportional or substantial relation to the other class(es) of shares. Secondly, such interpretation is basically to be applied in case of merger. But there is one exception : any proportional variation resulting from the merger-ratio does not constitute an adverse variation of class rights. Thirdly, an argument that in case of merger other than amendments of articles an adverse variation of class rights is to be dependant on whether the proposed merger-ratio is fair or not may not be followed. Fourthly, §§ 435, 436 of the KCC should be more objectively worded just like §§ 10.04, 11.04 of the Model Business Corporation Act. Fifthly, the statutory ex post protective technic provided in §15 of German Restructuring Act(UmwG) is strongly recommended to be introduced in the KCC.