주식회사 신주발행의 쟁점에 관한 소고

New share issuance, as well as bond issuance, is one of the principal means for a corporation to fund its capital. The terms and conditions of the issuance of new shares as well as the nature of investors subscribing new shares vary by growth stage of a corporation, and in many cases the success of the corporation relies on the efficient equity financing by way of issuance of new shares in each stage. This paper discusses the issues arising in practice related to the issuance of new shares by a corporation and proposes rational legislation and practical interpretation in order to reasonably mediate the interest of stakeholders surrounding the corporation. First, with regard to new share issuing procedure, it is reasonable to construe that even if consents have been obtained from the entire shareholders listed in the shareholders registry, a notice of the record date for subscription of new shares may not be waived in allotting shareholders given that the purpose of the above regulation is to protect shareholders who have not registered their ownership in the shareholders registry. On the other hand, in case of the third party allotment, the notice to existing shareholders regarding thereof may be waived if consents are obtained from the entire shareholders listed in the shareholders registry. In addition, the currently effective KCC provisions defining the effective date of issuance of new shares as the date immediately following the payment date need to be amended from a legislative perspective because they not only differ from the legislation cases in other major countries but also unnecessarily delay financing and transaction period. Furthermore, as for in-kind contribution, it is necessary to harmoniously interpret the regulation of approving in-kind contribution and the system of paying the subscription price by way of an offset as set forth under the the Korean Commercial Code (the “KCC”) and to reasonably interpret the provisions in order to prevent damages to corporations. It would also be appropriate to construe that the regulations on third party allotment of new shares apply to in-kind contribution as well given that it does not guarantee preemptive rights to the entire shareholders. In terms of a share subscription agreement, a corporation providing a commitment about the operation of the corporation to a certain shareholder is in violation of the principle of shareholder equality and thus is not legally valid. A realistic method would be executing a shareholders agreement so that major shareholders bear the obligation to procure the corporation to follow the covenant. In addition, a share subscription agreement often gives rise to an issue of to which extent the corporation’s compensation for damages to subscribers or from the risk of investment is permissible. First, the representations and warranties and indemnification for damages for the breach thereof may be found effective because they are for the allocation of the risks that have arisen before the investment between the corporation and investors and also are similar in nature to the provisions of the Financial Investment Services and Capital Markets Act that stipulate the indemnification for damages in case of false statement or misrepresentation in a securities registration statement. On the other hand, any agreement on compensation for loss in share values after subscription of new shares, including an adjustment of conversion price of convertible preferred shares, because under such agreement the corporation provides compensation or refunds of share subscription amount to certain shareholders against the risks arising after investment, violating the principle of shareholder equality and the principle of capital soundness. Therefore, if such an agreement is not made reasonably within a foreseeable scope, such as by determining a specific limit on conversion price adjustment at the time of issuing the convertible shares, there is a risk that the agreement is found invalid by the court.