제3자 배정에 의한 전환사채발행의 무효원인에 관한 판례 검토

A convertible bond(C.B) is principally issued for the purpose of means of corporate financing, however sometimes it has been used as the means of defending management against hostile M&A. In this essay two cases are introduced and all are concerned with the claim of nullifying the C.B. for the reason of the change of equity ratio resulted from the issue. The Supreme Court found that the articles on action for nullification of issuance of new share can apply by analogy to the case about the claim for void of C.B. and that the cause of action of such claim should not be limited only the situation when there is being in trouble or close at hand about the struggle for management and where the issue of C.B. intended to lead to change the management or to obstruct it from attack. The problem of C.B. could be solved by considering two step. First, in the step of issuing C.B., we should consider whether the issuance be done by observance of the law or article of incorporation. When the issuance would not follow the law or articles of incorporation, it has the cause of action of nullification. Second, in the step of exercising the right of converting bond into share, we have to consider whether it result in the change of management or not. In this step two kinds of purpose of bondholder should be tested. That is the purpose of issue of C.B. and the purpose of exercising the right of converting bond into share. In case there is no purpose of financing and there is the purpose of intention intervening into the management dispute, the exercise of converting right should be made to void and so be the issue of new share.