주주의 전환사채발행 유지청구권에 관한 연구

n recent cases of convertible bond issuance by listed companies, it is mainly issued through the third-party allocation method to individuals other than shareholders. In this case, there may be concerns about dilution of the stock value for existing shareholders. The Commercial Act stipulates that when a company issues convertible bonds to individuals other than shareholders, it must meet procedural and substantive requirements to protect the interests of existing shareholders. In the event that a company violates such legal provisions or the contents of its articles of incorporation, or issues convertible bonds through significantly unfair methods, the Commercial Law applies the injunction of shareholders as a pre-emptive remedy in the issuance of new shares. The injunction to maintain ownership can be exercised until the payment date of the convertible bonds. Therefore, for shareholders to properly exercise this, they need to be informed in advance about the issuance of convertible bonds. However, considering the recent issuance practices of listed companies, shareholders only become aware of the issuance when the company discloses a major event report stating its decision to issue convertible bonds. In most cases, this disclosure occurs only after the payment date, making it difficult for the injunction to be effectively exercised. Unlike the case of third-party allocation of new shares, the Commercial Act does not specify the requirement for prior notice or announcement to shareholders when issuing convertible bonds to individuals other than shareholders. The ‘Capital Market and Financial Investment Business Act’ (hereinafter referred to as the ‘Capital Market Act’) stipulates that if a securities report (disclosure) is not filed, the issuer cannot conduct a public offering. However, this provision does not apply to private placements. Furthermore, for corporations subject to submission of business reports, if a decision to issue convertible bonds is made, they must disclose a major event report by the following day. Unlike new share issuances, there is no specific disclosure deadline based on the payment date. As a result, companies often set the payment date close to the issuance decision date and disclose the information around the payment date. In considering the issuance of convertible bonds to third parties, there are similarities to the allocation of new shares to third parties, and it is important to have institutional support to effectively exercise shareholders’ injunction. Taking into account legislative examples in Japan that regulate prior notice and announcements, it is reasonable to include provisions for prior notice and announcements to shareholders in the Commercial Act. Specifically, for special bonds like convertible bonds, it is necessary to consider the urgency of raising funds. Additionally, considering the similarity to new share issuances and the need for balance, and taking into account the active disclosure regime, it is reasonable to apply the prior notice and announcement provisions in the Commercial Act, similar to the current practice for new share issuances. However, it is also reasonable to amend the Capital Market Act to exclude the requirement for prior notice and announcements for corporations subject to submission of business reports when they submit major event reports 7 days before the payment date.