주식관련사채의 옵션행사에 따른 신주발행시 신주발행무효의 소의 제기 가부 - 대법원 판결에 대한 평석을 겸하여 -

Article 429 of the Korean Commercial Code(ʻKCCʼ) stipulates actions for the invalidation of issuance of new shares. The Supreme Court allows actions challenging the invalidity of issuance of both bond with warrant(ʻBWʼ) and convertible bond(ʻCBʼ). These actions are subject to six-month statute of limitation. In cases where new shares are issued through the exercise of warrants or conversion rights, the issue arises of whether the plaintiff can challenge for the invalidity of such subsequent issuance of new shares. In 2022 two Korean Supreme Court cases(2021da201054 and 2021da205650) allowed a separate nullification suit for the shares issued by exercising detachable warrant or conversion right. These cases are noteworthy for balancing two conflicting interests: the protection of the plaintiff shareholdersʼ filing rights and the early determination of legal relationships, aiming to promote transaction safety. Both cases are based on the same legal principle. While 2021da201054 involves a large shareholder acquiring warrants from the subscriber of the BW and exercising them, 2021da205650 involves a CB holder exercising conversion rights. The different factual circumstances have led to different conclusions, raising question about under which circumstances a separate nullification suit challenging the invalidity of issuance of new shares is allowed. Under the two cases, there may still be uncertainties about the conditions where plaintiffs can challenge the invalidity of subsequent issuance of new shares. The scope of application of the rulings should be clarified through the accumulation of future cases. This paper argues that plaintiffs should contest the invalidity of issuance of BW/CB, not that of subsequent issuance of new shares.