신주발행 무효사유의 재검토 ―합병무효의 소에 관한 논의를 포함하여―

This paper attempts to address several issues regarding the legal doctrines on invalidity of newly issued shares. It should be noted that the courts weigh the necessity of remedy to the social costs incurred by invalidating the transaction. Some commentators explain that the causes of invaildity do not include the defects in or non-existence of the resolution of the board of directors, but a closer look at precedents reveals that the courts reaching such conclusion were still balancing the two elements. As a result, the invalidity of issuance of new shares depends on how far the issued shares are placed in the distribution channel. The shares already being distributed to public shareholders, for instance, are less likely to be invalidated than the shares still remaining in the possession of the original subscriber. This analysis can be effectively applied to several legal issues regarding invalidity of issuance of new shares. This article addressed four issues. ① In terms of the enforcement or effectiveness, the issuance of new shares should not be treated differently depending on whether it is made by a resolution of the shareholders’ general meeting or a resolution of the board of directors. The Korean Commercial Code allows companies to choose the institution, and companies’ opting for a resolution of the shareholders’ meeting does not change the nature or importance of the issuance of new shares. ② In the event that there are defects in or non-existence of the resolution of the board of directors, the validity of the issuance of new shares is not determined uniformly, but should be determined according to the above-mentioned cost-benefit balancing process. ③ If the issuance of new shares falls into the self-dealing under the Commercial Code, the validity should be determined in accordance with the self-dealing doctrines. Thus, for instance, if there was no approval buy the board of directors, such issuance of shares should be subject to a more restrictive standard similar to the entire fairness test for the self-dealing transaction. However, whether or not the issuance of new shares is ultimately invalid is also determined by the above-mentioned cost-benefit balancing process. ④ When the price of new shares is unfair, compensation for damages is generally a more effective remedy than nullifying the issuance of new shares. The same is true for mergers, since a merger is merely a type of issuance of new shares. Thus. the current precedents that the significant unfairness of the merger ratio can be a ground for invalidation of the merger, is not convincing.