위법·불공정한 전환사채의 발행과 다중대표소송

This study seeks to explore ways of validating shareholders’ right protectionbased on the analysis of rulings on illegal and unfair convertible bond issuance. Regarding convertible bonds, the suspension claim of new stock issues isapplied in the commercial code, the nullity suit of new stock issues is appliedby the inference, and shareholders can raise a representative action. However,the suspension claim is a preemptive measure to be taken prior to convertiblebond issue, facing an effectiveness issue if convertible bonds have alreadybeen issued. The nullity suit, unlike in the case of new stock issue, requiresstrict criteria, exposing its shortcoming in shareholder right protecting. Shareholders’ representative actions are minority equity and it is not easyfor them to meet the requirements for such a legal action during a shortperiod of time after convertible bond issues. In order to reasonably addressconvertible bonds issue-determining procedures, illegality and unfairness inits content, it seems necessary to introduce a system to hold managementincluding directors, liable. In South Korea, chaebeol-cause enterprise concentration is excessive. Thusa failure in affiliate company management is highly likely to damage itsparent company and shareholders to a serious extent. For this reason, multiplederivative suits are necessary for the protection of parent-company shareholderrights. In the country, the supreme court does not allow a multiple derivativesuit for the absence of any specified provision on it, sparking discussionson relevant legislation. Although the current commercial code allows shareholdershaving at least 1/100 of the total outstanding stocks of a company to file a multiple derivative suit, such a suit has not been actively relied on. Citingthis lower level of multiple derivative suit use and opposition from themanagement, some argue against the legislation of multiple derivative suits. However, for shareholder protection and corporate profit maximization, shareholders’multiple derivative suits need to be activated in its application and effectivenessthrough proper legislative improvement. In Japan, the issue of managing-companyshareholder protection has enacted in relation to a managing-companyshareholder right reduction. As its solution, multiple derivative suit introductionhave been decided. However, along with the multiple derivative suit system,the possibility of suit abuse has also become a subject of concern. In thissense and to ease management opposition, there should be full discussions fromvarious perspectives. As the present simple representative suit has not beenmuch activated as of now, it is hopped that the introduction of multiple derivativesuit system will contribute to shareholder interest protection.