실권 전환사채의 제3자 발행에 대한 이사의 책임 -대법원 2009. 5. 29. 선고 2007도4949 전원합의체 판결과 관련하여-

There is an issue as to whether the board of directors has the power to issue forfeited convertible bonds to a third party at a discounted price without the relevant resolution of the shareholders’ meeting. As convertible bonds are potential securities, the issuance of discounted convertible bonds to a third party, if converted later, would harm the shareholders due to dilution and would injure the corporation due to decrease in assets, especially when compared to the issuance of fairly priced shares. In light of the above, the Commercial Code grants broad rights to the board of directors to achieve two goals of the issuance of convertible bonds: (1) to protect shareholders based on the principle of equality for shareholders and (2) to enable corporations to raise money. However, as the same time, the Code distinguishes between issuance to existing shareholders and issuance to third parties. As for the later, the Code imposes several limitations on the power of the board of directors. For instance, such issuances are permitted only when there are good business purposes like development of new technology, and they are made subject to the resolution of shareholders with respect to the detailed terms of such issuances. As directors are fiduciaries, they are required to comply with relevant laws and to exercise their powers to maximize the benefits to the corporation and not to harm shareholders’ interests. Therefore, when they decide to issue convertible bonds to third parties, they still need to comply with the Code and exercise their power in a way maximizing the benefits to the corporation and causing no injury to the existing shareholders by setting a fair price for the bonds and obtaining shareholders’ approval. The issuance of convertible bonds to existing shareholders and the issuance to third parties have different requirements, procedures and directors’ powers. Here, the distinction between the two shall not depend on whether shareholders are granted the right of first refusal, but on substantial factors such as whether there is need for shareholder protection, whether there would be potential injuries to shareholders due to changes in stock ownership structure to be caused by stock dilution. Even for those forfeited bonds, if they are to be issued to third parties, they will cause stock dilution just like those bonds initially issued to third parties. Accordingly, such issuance shall be deemed an issuance to third parties. As stated above, issuance of forfeited bonds to third parties is an issuance to third parties, and accordingly, the board of directors does not have the sole right to continue the process to issue discounted bonds to third parties. The board shall obtain the shareholders’ approval for the issuance of bonds satisfying the business purpose requirement and issue the bonds at a fair price. If the board issues such bonds to third parties at a discounted price, there will be injury to the corporation in the amount of decreased assets, compared to issuance of the same at a fair price. In addition, if the bonds are eventually converted, the shares will be diluted. While shareholders do have the right to give up the bonds under the principle of limited liability, it shall not mean that they have accepted the risk of injuries or that they would suffer no injuries. Therefore, if they issue forfeited bonds to third parties at a discounted price without shareholders’ approval, the directors would be deemed to cause injury to the corporation and the shareholders due to their violation of the Code and their negligence, and accordingly, they would be liable to the corporation and the shareholders for the injuries.