전환사채의 저가발행과 배임죄에 관한 판례평석 - 삼성에버랜드 주식회사의 전환사채발행을 중심으로 -

Korea’s representative conglomerate Samsung Group is regarded with ambivalence. Most college students consider former Samsung Group Chairman Lee Kun-hee as a respectable businessman, and Samsung Electronics Corporation, a key company among Samsung Group subsidiaries, often gets a higher credit rating than the nation’s credit rating. However, it is criticized for its outdated management and has been faced with lawsuits due to numerous illegal practices. There are various rulings on the succession of Samsung Group’s management rights, and the ruling discussed in this paper is also on a case related to the succession of management rights. According to the majority opinion of the Korean Supreme Court unanimous decision on the Everland convertible bond case, because every shareholder was given the opportunity to take over the convertible bonds (hereinafter “CBs”), the CBs were issued legally, although a large quantity of residual CBs were not subscribed. Accordingly, the directors were not guilty of breach of trust, although the CBs were issued to third party at a price lower than the fair price. Since it is reasonable for corporations to differentiate between shareholders who are active investors and third parties, the majority opinion, which states that breach of trust does not apply when CBs are offered to existing shareholders at a discount, is reasonable. According to the majority opinion, if every shareholder is given the opportunity to take over CBs, the issuance of the CBs is legal. In my opinion, the purpose of the majority opinion is to promote stable and uniform legal relations when accepters of CBs are random and unspecified. However, since the accepters of CBs are limited to a son and daughters of the controlling shareholder, it is unnecessary to protect them in order to promote stable legal relations. According to the majority opinion, if the CBs are offered to existing shareholders and there are a large quantity of residual CBs for which the existing shareholders had not subscribed, the board of directors is allowed greatly extensive power, thus the validity of the majority opinion needs to be revisited. Since a profit-seeking corporation needs to raise steady funds as much as possible, when non-subscribed CBs are issued to third party, as opposed to existing shareholders who are active investors, the board of directors should have reviewed whether there exists a business purpose. However, the board of directors did not consider this. In conclusion, the directors in this case violated their fiduciary duty by issuing CBs at a discount to a son and daughters of the controlling shareholder for the purpose of evading high inheritance tax rate. Due to director’s negligence, third parties were able to make a profit of the difference between fair price and issue price multiplied by the number of issued stocks, and the company suffered a negative loss of this amount and also a depreciation of its credit rating. Therefore, I conclude that there exists reasonable grounds for the crime of trust breach.