신주의 제3자 배정의 적법성: 대법원 2009. 1. 30. 선고 2008다50776 판결의 평석을 겸하여

Under the Korean Commercial Code(hereunder, KCC), in principle shareholders of a company have the right of pre-emption. This policy aims to protect shareholders’ internal rights over the company. However, KCC allows the board of directors(hereunder BOD) to issue company’s new shares to a third party only when it is essential to achieve company’s managerial goals, under the restriction of proportionality between goals and means. Most Korean courts see that when disputes for the management of a company arise between shareholders it is illegal for the BOD to issue its new shares to a third pary with the intention to maintain its managerial power over the company. However, those courts’ rulings can not be justified because even if the BOD’s decision is based on the intent of protection of its management, in some cases the issuance of new shares to a third party can serve for the benefit of whole company, for example, up heaval of the value of a company. In this regard, it is highly recommended that, in accordance with Article 418 Section2 of KCC, Korean courts should pay attention to the theory of proportionality between goals and means when it tries cases with issues over the BOD’s issuance of a company’s new shares to a third party for the protection of its management. Given the facts that there can be some cases where even if the BOD issues new shares of a company to a third party with intention for the protection of its management the BOD’s decision can be justifiable, it is needed for Korean courts to shape and refine the theory of proportionality between goals and means when it tries cases over the legality for the issuance of a company’s new shares to a third party with intent of protection of mamagerial power.