경제환경의 변화와 기업금융법제의 발전

Ⅰ. Korean Commercial Code(Corporation Law)(Revision : Act No.10600, Declared April 14, 2011) (1) 2011 Korean Revised Commercial Code(hereinafter referred to as “KRCC”) diversified the classes of shares to provide convenience to companies in financing. Previous Korean Commercial Code(hereinafter referred to as “previous KCC”) provided non-voting shares, but only the class of shares having preferential rights as to the dividend of profits was provided to be non-voting shares(previous KCC §370(1)). 2011 Korean Revised Commercial Code deleted this limitation for non-voting shares(KRCC §344-3(1)). Moreover, 2011 Korean Revised Commercial Code provides the class of limited voting shares which is excluded from voting on certain agenda(KRCC §344-3(1)). Previous Korean Commercial Code provided redeemable shares only among shares having preferential right as to the dividend of profits, and the right of redeeming belongs to only the company(previous KCC §345). 2011 Korean Revised Commercial Code deleted this limitation(KRCC §345(1),(5)), and provides that the right of redeeming may belong to even shareholders as well as the company(KRCC §345(3)). Previous Korean Commercial Code provided that only shareholders with convertible shares may demand their shares to be converted into shares of another class(previous KCC §346(1)). However, 2011 Korean Revised Commercial Code provides that not only shareholders with convertible shares but also the company may demand for conversion(KRCC §346(2)). (2) 2011 Korean Revised Commercial Code introduced no-par value stock system. Namely, 2011 Korean Revised Commercial Code states that a company may issue no-par value shares provided when this company specified it in the articles of incorporation, in case a company issues no-par value share, the company shall not issue stock with par value(KRCC §329(1)). Companies may transfer their no-par value stocks into par value stocks or their par value stocks into no-par value stocks(KRCC §329(4),(5)), however the capital is not affected by the transfer(KRCC §451(3)). (3) 2011 Korean Revised Commercial Code introduced electronic registration system of stocks, bonds etc.(KRCC §§356-2, 420-4, 478(3), 516-7, 65(2)). Companies may register their shares to electronic stock registering institution(designated by authorities to deal with electronic stock registration) in accordance with the articles of incorporation(KRCC §356-2(1)). Since electronic registration substitutes the issuance of stock certificates, the stock should be issued prior to electronic registration. (4) Under the previous Korean Commercial Code, the total amount of bonds shall not exceed four times the amount of net assets of the company as shown by the latest balance sheet(previous KCC §470(1)), and a company shall not offer new bonds for subscription until the amount of bonds previously subscribed has been fully paid(previous KCC §471). Moreover, the previous Korean Commercial Code provided that the face amount of each bond shall not be less than ten thousand Korean Won(previous KCC § 472) and there was the restriction of equal rate’s amount on redemption in excess of par value(previous KCC §473). 2011 Korean Revised Commercial Code dropped trese articles to provide convenience to companies in financing. Under previous Korean Commercial Code, only convertible bonds(CB) and bonds with stock purchase warrants(BW) were provided. 2011 Korean Revised Commercial Code in addition to CB and BW provides participating bond, exchangeable bond, callable bond, derivative linked bond(KRCC §469(2),(3)). Ⅱ. Act of Korean Capital Market and Financial Investment Business The Act of Korean Capital Market and Financial Investment Business(hereinafter referred to as “Capital Market Act”) has special provisions for listed companies which are different from those of Korean Commercial Code. (1) Under Capital Market Act § 165-6(1)(3), the listed company which issues new share and allocates them to shareholders according to the number of shares which they own, shall issue preemptive rights certificates to new shares regardless of Korean Commercial Code article 416 number 5 and number 6. And such company shall let preemptive rights certificates be circulated in securities market etc. (2) Capital Market Act §165-6(1)Nr.3 and (4) stipulates that listed companies may issue new shares by public offer and the board of directors of the companies may decide any allocation method of new shares according to the articles of incorporation, regardless of Korean Commercial Code article 418. (3) Capital Market Act §165-6(2) provides that the listed companies issuing new shares may in principle withdraw the issuance of the new shares which have not been subscribed within subscription period or have not been paid within payment period. (4) Capital Market Act §165-8 provides that listed companies may issue shares the issue-price of which is less than par value without the permission of the court regardless of Korean Commercial Code §417. (5) Capital Market Act §165-15(2) provides that the total number of non-voting shares and limited voting shares of a listed company shall not exceed one half of the total number of issued shares regardless of Korean Commercial Code §344-3(2). (6) Capital Market Act §165-10(1) provides that provisions of issuance of shares shall apply mutatis mutandis in case where listed companies issue bonds related shares(examples, CB, BW etc.). (7) Capital Market Act §165-10(2) prohibits that listed companies issue bonds with stock purchase warrants where stock purchase warrants are separated from bonds. (8) Capital Market Act §165-11 provides contingent convertible bond(CoCo Bond). Ⅲ. Others (1) Act of Issuance and Circulation of Electronic Short-Term Bond etc. was enacted in Korea 2011(Act No.10855, Declared July 14, 2011). The Act introduced electronic short-term bond in a type of corporate bonds registrated on electronic account book which was invented to replace the function of commercial paper(CP). (2) Act of Issuance and Circulation of Electronic Promissory Note was enacted in Korea 2004(Act No.7197, Declared March 22nd, 2004). The Act shall apply compulsorily to legal business entities total assets of which exceed one billion Korean Won in the end of the latest year from August 7th, 2014. Korean Government(Ministry of Justice) prepared on May 6th, 2015 the bill which shortens the maturity of electronic promissory note from one year to six months. (3) Hopefully, the amendment bill of Capital Market Act for crowdfunding, the bill of electronic securities and the amendment bill of Banking Act for internet bank will be passed by Korean National Assembly in 2015.