상장회사법 제정에 관한 구상 - 비교법적 시각에서 -

Experience shows that it is very difficult to enact a new law. In particular, there have long been arguments in the academic and working circles that the company act should be separated from the Commercial Code, but the reality is that it has not been able to create a big development. Under these circumstances, the Study suggests that the Listed Company Act is to be legislated as an alternative. It is expected that it will be easy to draw consensus for the legislation of the Act. Once again at the time of 2019, the Study has given three reasons for the legislation.: First, it is necessary to legislate the Act in order to flexibly respond to rapidly changing capital markets and to protect various stakeholders. Second, special provisions which are applied to listed companies are currently stipulated respectably in the Commercial Act and the Capital Market Act. Convenience will be enhanced if these provisions are united in an act. Third, since there are a lot of laws related to listed companies, there is a lack of systematic convergence. It is necessary to enact a listed company law to overcome this kind of problem. From a comparative perspective, the U.S., Germany, Japan, and Thailand laws are referred. The Study presents several regulations that would go into the Listed Company Act by referring to the above-mentioned national legislations. To summarize the additional provisions to be incorporated into the Listed Company Act in the Study: First of all, there should be regulations for closing the list of shareholders and reducing the period from the record date to the date of shareholdersʼ meeting, regulations imposing the obligation to establish an internal control system on directors, and regulations requiring meetings of outside directors. Next, the provisions on accounting standards and accounting audits of listed companies under the current External Audit Act are transferred to the Listed Company Act. Finally, some improvements are made in terms of reorganization, such as mergers, etc. In other words, it does not recognize the appraisal right of shareholders who oppose the merger, etc. in a listed company, and requires approval from the shareholders' meeting of the parent company if the consideration for the merger offered to a third party in a triangular merger exceeds 10 percent of the voting rights issued by the parent company. In addition, the individual notice system for creditors is abolished in connection with creditor protection procedures required for merger, and the creditor protection procedures are not provided for creditors if there is no damage to the creditor.