신주인수권부사채 발행의 무효 -대법원 2015. 12. 10. 선고 2015다202919 판결의 평석을 겸하여-

This paper reviews the recent Korean Supreme Court decision (2015Da202919 dated December 10, 2015) in which the Court affirmed the possibility of claim to nullify issuance of a bond with warrant (“BW”), despite non-existence of express regulation thereof, by applying mutatis mutandis the Korean Commercial Code (“KCC”) provisions allowing a plaintiff to claim for nullifying issuance of new shares. The Court ruled that issuance of a BW can be nullified even if there is no specific provision in the KCC providing for nullification of BW if the BW was issued illegally, treating the case similarly as in the judicial precedent of the Supreme Court in 2004 that affirmed the possibility of claim to nullify issuance of convertible bonds (“CB”) against Samsung Electronics. This paper also discusses various remedies available if issuance of a BW turns out to be illegal other than nullifying the issuance of BW in its entirely. Given that the KCC does not expressly apply the new share issuance nullification lawsuit provision to BW, it may raise a question as to whether the original intention behind the legislation was to prohibit nullification of any bonds including BW, as opposed to shares, in order to ensure legal stability of transactions involving bonds and protection of bondholders’ interests. However, it is unreasonable to completely block access to litigate the validity of issuance of BWs or CBs, which are hybrids of equity and debt. If such access is to be given, it is conceivable to differentiate lawsuit for nullifying the new share issuance elements by exercising equity-linked warrants from total issuance of a bond and treat them separately in litigating their validity. In light of the current structure of the KCC, the author is of the opinion that if issuance of a BW is illegal, it would be more appropriate to litigate the validity or existence of the issuance pursuant to the general civil lawsuit principles under the Korean Civil Procedure Act. On the other hand, if the ground for the nullification relates to the conversion right or to granting or exercising of the warrants attached to the BW, then it would be more appropriate for the court to apply mutatis mutandis the lawsuit for nullifying issuance of new shares by only limiting the cases to the situations where new shares have been issued as a result of exercising the conversion right or warrants. Further, in order to prevent a CB from being converted into shares or a warrant of a BW from being exercised for new shares, a preliminary injunction can be considered as an effective measure, alternatively. This is because, in case of detachable BWs, in particular, a third party can acquire the detached warrants separately from the bondholder under terms and conditions in issuing the new BWs, and such acquisition of detached warrants by third party-in particular, the existing largest shareholder-is very similar in substance to third party’s subscription for new shares of the company, which would result in dilution of other shareholders in terms of shareholding ratio and therefore is urgently concerned with serious distortion issue of corporate governance. Although issuing detachable BWs is not allowed by private placement under the current the Financial Investment Services and Capital Market Act (the “Capital Market Act”), in order to resolve problems concerning detachable BWs, it is necessary to introduce and legislate in the KCC the new concept describing naked warrant (which means a transferable option certificate that gives the holder the right to purchase securities (stocks) from the issuing company at a specific price within a certain period in the future). Upon enactment of naked warrant, the warrant itself can be separately recognized under the KCC, and the proper level of regulation can be discussed in public. Consequential discussion should be reflected in the KCC, which is the primary law governing corporations, rather than the Capital Market Act, a special law comparatively.