종류주식의 다양화와 자금조달의 유연성에 관한 법적 쟁점 분석

According to the Revised Draft of Korean Commercial Code(KCC) which was announced for public comments on May 7, 2008 by the Korean Ministry of Justice, various class stocks are scheduled to be introduced in order to enhance the efficiency of corporate equity financing. Class stock of profit sharing and distribution of remaining asset, class stock of restraining voting rights, class stock of share transfer, class stock of redemption and class stock of convertibility are included. This article mainly deals with class stock of profit sharing and distribution of remaining asset, class stock of redemption, and class stock of convertibility. First of all, the draft of the KCC does not adopt tracking stock system. Considering current Korea’s accounting principles and practices, it seems to be difficult to introduce tracking stock in near future which reflects the performance of specific business, or group of business owned by issuing company. However, it is desirable to introduce tracking stock which links the performance of subsidiary’s business, because the subsidiary is independent corporate entity and it will be much easier to reflect the performance of subsidiary’s business. Regarding class stock of redemption and class stock of convertibility, even though lots of regulated legal measures are alleviated in order for efficient equity financing, redemption of common stock is not allowed because of worrying abuse as a defense mechanism of hostile merger and acquisition. This problem is mainly related to public companies. However the KCC applies public and closed companies together. Therefore, the KCC must allow redemption of common stock, and problem of public companies caused by redeeming common stock should be dealt through the enlisted manual of stock exchange. This article also suggests to integrate current separate provisions of class stock of redemption and class stock of convertibility. It offers to expand the financial resources for redeeming class stock of redemption. In addition to distributable earnings, legal reserve which can be classified into the earned surplus reserve and the capital surplus reserve may be utilized as redeemable financial resources. Finally, this article analyzes how shareholders’ equal rights affect in developing various class stocks.