자본시장법상 상장회사의 신주발행방법에 관한 연구

By commercial law of our country, Existing Shareholders Shall have the rights to acquire new shares in proportion to their shares. Like this, commercial law stipulates "Pre-emption right", thus the rights of shareholders is protected from the risk of dilution of their shares in the new shares issuance. But There is no provision about the unsubscribed shares, there have been problems that the board of directors occasionally assign the unsubscribed shares to the dominant shareholders or their relatives to provide preferential treatment. Korean Supreme Court suggested a certain criteria about offering to shareholders and offering to a third party, disposal of unsubscribed shares, in a case relating to issuance of convertible debts in Samsung Group at deeply discounted price, and revised Korean Capital Market and Financial Industries Act firmly established how to deal with the unsubscribed shares. Along with that, The Act classified the procedure of the new shares issuance as offering to shareholders, allotment to the third party, public subscription, And the act explicitly stipulates the shareholder's preference in public offering as the type of offering to shareholders, adopts excess subscription system. In this way The Act suggests the guidelines about the new shares issuance and the unsubscribed shares treatment of the listed corporations. But there is difficulty in interpretation about the concept of the unsubscribed shares, the exception of the issuance of withdrawl, public subscription after offering to shareholders, excess subscription, shareholder's preference in public offering, subscription of Employee stockholders association and so on. Thus this paper seeks the way for the interpretation and legislation for the relevant provisions of the Act to protect the rights of the stakeholders, to help raise fund smoothly.