상장회사 이해관계자 거래 규제(상법 제542조의 9)의 실무상 쟁점

Many large listed companies in Korea are specially related with other listed companies as affiliates and so on. These related party firms frequently involve themselves in a variety of current and capital transactions with each other. While these related party transactions can be abused to undermine the interests of the listed company itself for the benefit of the major shareholders or affiliates of the listed company, such transactions are also necessary to create synergies among the related party firms, reduce costs, and to increase efficiency, as well as for the stable supply of products and services and ensuring consistency in the brand, management vision, etc. of the group as a whole. Accordingly, when applying Article 542-9 of the Korean Commercial Code, which regulates related party transactions of listed companies, it is necessary to take into account both aspects. In particular, Article 542-9 (1) of the Korean Commercial Code sets forth a general prohibition on credit provision to related parties of a listed company that is applicable even to those satisfying requirements of approval of the board of directors and fairness in transaction procedures and terms that are generally required for related party transactions. This highlights the need for a harmonious interpretation that does not undermine the practical necessity of related party transactions and management flexibility of listed companies while respecting the purpose of the above regulation. In this respect, it is necessary to construe the scope of credit extension involved in business transaction, purchase of securities for financial support, and commitment for contribution of capital limitedly in relation to the scope of credit provision. As for exceptions to the prohibition on credit provision, legislative improvements will be necessary as the current regulation does not make exceptions for financial support, such as credit provision, by a holding company toward its sub-subsidiary, which is necessary businesswise in view of the function of a holding company to control and administrate the management of its subsidiaries and sub-subsidiaries. Although there is some lack of clarity as to the substantive requirements for making exceptions, it is desirable to broadly consider the necessity of the transaction, the adequacy of the transaction terms, and whether the transaction is likely to undermine the management soundness of the company in consideration of the overall purpose of the regulation. Regarding the scope of application of the regulation for the large-scale rerlated party transaction of large-scale listed companies set forth in Paragraphs (3) and (4) of Article 542-9, it is more reasonable to view that the above regulation applies to capital transactions such as capital increase and capital reduction in addition to current transactions. As for the exceptions to the above regulation, report to the general meeting of shareholders will be required for transactions under general conditions while approval from the board of directors will not be required. Legislatively, we can consider acknowledging the performance of reporting obligation in case the provision of information to shareholders equivalent to the report to the general meeting of shareholders, such as a disclosure prior to the general meeting of shareholders, is performed. For routine transactions that fall within the scope of the total transaction amount approved by the board of directors, no additional board approval will be required and no report to the general meeting of shareholders will be required regarding the details of the transaction as well. However, since the board resolution to approve the total amount of transaction, which is the basis for the exception, is equivalent to the board approval for large-scale related party transactions, it would make legislative sense to require approval of the board of directors as to the specific transaction terms or the way how they should be determined.