株式의 大量保有등의 報告義務에 대한 再檢討 ― 議決權과 受益權의 분리 현상을 중심으로 ―
Review on 5% Rule-Focusing on decoupling voting rights from economic ownership of a share
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Traditionally, voting right and economic ownership of a share had belonged to a shareholder. Under the shareholder democracy theory, the shareholder who has the residual right to a corporation is the most right person to get the fundamental rights, rights to vote. Voting rights can not be assigned separately from economic ownership. However, recently by the development of financing skills and derivatives and especially through the emerging economic activities of Hedge Funds, we could find many cases where voting rights are separated from economic ownership such as stock lending and borrowing, equity swap and investment fund. Hedge funds which extremely pursue the interest frequently create new financing skills so that they strengthen such phenomenon. In a recent U.S court case, Perry Fund, a Hedge Fund, shows an extreme situation where a large shareholder can vote on a corporate matter in which it is self-interested without caring about and having economic ownership of the corporation. The current 5 % rule is reflecting voting right only in its regulation. Historically, the rule was devised to protect a target company and its shareholder in a aggressive M&A situation. Therefore, to disclose the person who owns voting right was of essence. Besides, the time when the rule was designed, those phenomena were not so outstanding that the regulators considered whether to reflect them on laws and regulations. However, recently, given that who owns the share of a company and who owns economic interest of the share are material to a reasonable investor in securities market and such a decoupling gives an influence on the company, shareholders and corporate governance as well, I believe we should consider the way to reflect the owner of economic right of the share on 5 % rule. For this, I am in an opinion that it is advisable to refer to the U.S 10 % rule which requires to disclose the extensive pecuniary interest to the security in its filing. In reflecting that point on 5 % rule, we may either extend the definition of a security as a object the rule or expand the definition of a beneficial owner in Korean Securities laws and regulations.
Abstract
Traditionally, voting right and economic ownership of a share had belonged to a shareholder. Under the shareholder democracy theory, the shareholder who has the residual right to a corporation is the most right person to get the fundamental rights, rights to vote. Voting rights can not be assigned separately from economic ownership. However, recently by the development of financing skills and derivatives and especially through the emerging economic activities of Hedge Funds, we could find many cases where voting rights are separated from economic ownership such as stock lending and borrowing, equity swap and investment fund. Hedge funds which extremely pursue the interest frequently create new financing skills so that they strengthen such phenomenon. In a recent U.S court case, Perry Fund, a Hedge Fund, shows an extreme situation where a large shareholder can vote on a corporate matter in which it is self-interested without caring about and having economic ownership of the corporation. The current 5 % rule is reflecting voting right only in its regulation. Historically, the rule was devised to protect a target company and its shareholder in a aggressive M&A situation. Therefore, to disclose the person who owns voting right was of essence. Besides, the time when the rule was designed, those phenomena were not so outstanding that the regulators considered whether to reflect them on laws and regulations. However, recently, given that who owns the share of a company and who owns economic interest of the share are material to a reasonable investor in securities market and such a decoupling gives an influence on the company, shareholders and corporate governance as well, I believe we should consider the way to reflect the owner of economic right of the share on 5 % rule. For this, I am in an opinion that it is advisable to refer to the U.S 10 % rule which requires to disclose the extensive pecuniary interest to the security in its filing. In reflecting that point on 5 % rule, we may either extend the definition of a security as a object the rule or expand the definition of a beneficial owner in Korean Securities laws and regulations.
참고문헌 (33)
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