일본에서의 주식연계보상 관련 동향과 그 시사점

Recently, in Korea, there has been an increase in the use of RSUs, which grant treasury stocks to employees when they meet certain conditions, such as working for a certain period of time, for the purpose of performance compensation, under the name of ‘restricted stock unit’. In Japan, there have been various discussions regarding stock-based compensation, the legal system has been reorganized, and the Financial Services Agency has provided interpretation guidelines on the relationship between stock-based compensation and insider trading regulations. This article examines these trends in Japan. With reference to the implications of the Japanese trends, the application of Article 388 (Director’s Compensation) of the Commercial Act to RSUs was examined, and the relationship between RSUs and regulations on the use of undisclosed material information was examined. ① Stock-based compensation such as RSUs are subject to Article 388 of the Commercial Act as “director compensation.” Therefore, if a shareholders’ meeting resolution is required for granting RSUs, there may be an issue regarding how to obtain the shareholders’ meeting resolution. In the case of RSUs, it would be reasonable to assume that the shareholders’ meeting should determine the upper limit of the number of RSUs, RSU vesting conditions, the number of shares granted when RSU vesting conditions are met, and the method of calculating that number. ② In terms of legislation, since Article 388 of the Commercial Act contains some unclear provisions regarding the regulation of stock-based compensation, it may be possible to consider revising Article 388 of the Commercial Act to stipulate matters that must be determined in the articles of incorporation or general shareholders’ meeting for each type of compensation, as in the Japanese Corporate Act. ③ If the decision on the individual compensation of directors is delegated to the board of directors, the transparency of the compensation decision process may be questionable. Therefore, in order to ensure the transparency of the compensation decision process, it may be possible to consider a measure that requires the board of directors to establish a policy for deciding on the individual compensation of directors (compensation decision policy), as in the Japanese Corporate Law. ④ It would be reasonable to first consider interpreting or revising Article 388 of the Commercial Act in a way that can sufficiently regulate RSUs, and the introduction of new regulations on RSUs should be accompanied by careful review of their necessity and effectiveness. In cases where a listed company in Korea internally decides to dispose of treasury stocks as RSU compensation for executives, there may be an issue of whether the fact constitutes “important information” and whether the information should be disclosed in order to conduct transactions such as acquisition of treasury stocks while avoiding violations of regulations on use of undisclosed material information. The decision to dispose of a certain amount of treasury stock as RSU compensation may be considered ‘important information.’ Not only when the board of directors resolves to dispose of treasury stocks as RSU compensation, but also before that, when the decision to dispose of treasury stocks as RSU compensation is made internally or reported, if it has become specific enough to be considered important in decision-making regarding securities transactions from the standpoint of a rational investor, it can be considered that important information has been created at that point. Accordingly, if a listed company has internally decided to dispose of its own stocks as RSU compensation for executives and the fact can be deemed as “important information,” in order to conduct transactions such as acquisition of its own stocks while avoiding violations of regulations on the use of undisclosed material information, it may be necessary to disclose the information by selecting one of the methods stipulated in Article 201, Paragraph 2 of the Enforcement Decree of the Capital Market Act. If the company has important information, there may be an issue of whether disposing of treasury stocks as RSU compensation violates regulations on the use of undisclosed material information. If an RSU grant agreement has already been concluded and a board of directors resolution has been passed on granting RSUs, and the company disposes of its treasury stocks to fulfill the RSU grant agreement, it cannot be said that the transaction was made using undisclosed material information, as it falls under the category of “when it is recognized that the transaction was made for a motive other than undisclosed material information.”