新株의 低價發行에 관한 논의 - 삼성 에버랜드와 SDS에 대한 판결을 중심으로-

Recently, The Korean Supreme Court held that ‘the corporation’ are injured where corporate directors set an unreasonably low offering price for additional shares to the non-shareholders, However, the corporation are not injured if the existing shareholders participate in the stock offering exercising their preemptive rights. There　was controversy in regards to diluted loss result in the corporation. This　paper argue the unreasonably low offering price injured both the corporation and the existing shareholders regardless of whether existing shareholders participated in the stock offering. The corporation incurred a separate harm. This paper agree that it is not the breach of the fiduciary duty only in a situation　where the corporate directors allow the shareholders to purchase new shares of stock though they issue the stock in the low price. However, if Shareholders waive their preemptive rights, so the third may benefit caused by unreasonable low offering price, the directors violated the fiduciary duty to shareholders and the corporation. The　Deluted loss is a direct injury to the corporation and shareholders are derivatively injured. Thus,　it cannot be remedied through a direct action by individual shareholders. Breach　of fiduciary duty and the damage to the company are requirements in the Criminal Breach of Trust in Korea. Therefore, It is possible the director is charged to the criminal penalties for the damages of corporation arising from issuance of new stock, but I am still doubtful.