議決權調整型 種類株式의 導入에 따른 法的 課題

With the increasing needs to various methods to raise finance in corporate practice, it is necessary to introduce various types of stocks in the Korean Commercial Code. We can divide the rights concerning stocks into two kinds of rights, ‘cash flow’ and ‘control’. Through adjusting rights on cash flow, lots of stocks regarding profit sharing or remaining asset can be designed. For example, there are preference share, deferred share and etc. Higher variety class shares can be made by transforming the voting rights, such as the class stock of eliminating or restraining the act of voting, multiple voting stock, the class stock of refusal rights and the class stock of electing. The corporation laws, including the Model Busininess Corporation Act in the U.S.A., generally do not limit kinds of stocks, but entrusts companies with it. Japan diversified the system of class shares through amendment to the commercial code in 2001, 2002 and enactment of the corporation law. However, the stocks allowed now aren't the same as the class stock of profit sharing and distribution of remaining asset. And the class stocks of eliminating voting rights can be set as participating preferred stock only. The stocks with limited voting rights are useful systems for companies. Namely, the stocks with limited voting rights can be used as an effective means for raising funds without influencing the voting rights of the controlling shareholder. It can also be used as defensive measures and means to effectively fulfil shareholders' voting agreements. To introduce the stock with limited voting rights, we should examine the theoretical and institutional problems in the commercial code. For instance, the commercial code has the shareholders equal treatment rule, and its exceptions are allowed only by the law. But diversification of the system of class shares be regarded as an exceptions to the shareholders equal treatment rule making the rule a little bit confusing. Therefore, it is necessary to review the shareholders equal treatment rule and establish new theories. Diversification of the systems of class shares also requires to dilute the “one share - one vote” principle and to design distributions on voting rights more freely. Therefore, this principle should be changed into default rules. This study reviews the meeting of shareholders of class shares, where shareholders' rights are protected. It also suggests the concrete way to amend the listing guidelines and regulation of “The Korea Exchange”, because the listing guidelines and regulation should be revised, when class shares are admitted to list on the Exchange.