新株의 低價發行에서 理事의 任務違背

The Korean Supreme Court recently held, in a high profile case relating to issuance of convertible debts in Samsung Group at deeply discounted price, that directors do not breach the fiduciary duty to corporation if the equity securities are assigned to existing shareholders in proportion to their shares. Several seemingly relevant issues, such as how many shareholders give up subscribing the new shares or who ultimately owns them, do not matter in determining directors' liability. All that is required for preventing directors from being liable is simply allowing existing shareholders an opportunity to buy the newly issued shares (in this case, approximately 97% of shares did not make use of such opportunities). This paper examines several legal doctrines addressed in this case, and conclude that this case should not be distinguished from a third party issuance of new shares in terms of directors' liability to corporation. Although the court correctly took into account the economic impacts of discounted equity offering on the interests of existing shareholders as a whole, it should not be acceptable to argue that existing shareholders are not entitled to claim damages because they are given the opportunities to proportionally buy additional shares at such price. The main reason underlying this is that the statutory preemptive rights of current shareholders do not fully protect them from share value dilution. Preemptive rights create pressure to buy new shares, and thus play very limited role in protecting shareholders. Directors should be assumed to owe fiduciary duties to maximize shareholder value in every aspects of managing corporation, and this principle should be applied to cases where some shareholders abandon the opportunities to buy new shares. In this case, therefore, the price of second sale of unsubscribed shares should be set at the level not to incur wealth transfer costs. Without any business purpose enough to justify new equity offering, directors will be held liable for breach of their fiduciary duties if they sell the unsubscribed shares at deeply discounted prices. In conclusion, distinguishing equity offering to existing shareholders from a third party offering is hardly said to be a powerful frame to analyze directors' fiduciary duty.