워런트 제도의 도입 및 통합적 규제방안 (Ⅰ) - 신주인수권의 개념에 대한 고찰을 겸하여 -

While the current Korean Commercial Act provides for bonds with warrants and stock options, it lacks explicit provisions governing the issuance of naked warrants. This legislative loophole constrains corporate financing flexibility and creates legal uncertainty inconsistent with the rapidly evolving global financial environment. In contrast, major jurisdictions including the United States, Japan, the United Kingdom, and France have long recognized equity warrants comprehensively, employing them as multipurpose instruments for capital raising, mergers and acquisitions, and corporate restructuring. Moreover, the current statutory framework generates serious conceptual confusion through the polysemous use of the term ʻpreemptive rightʼ. This Article argues that introducing a naked warrant regime need not merely add another financing tool, but can be designed to reinforce the foundational corporate law principle of shareholder protection. Furthermore, regarding the potential abuse of warrants as entrenchment devices, established precedent holds that management defense alone does not satisfy the ʻbusiness purposeʼʼ requirement under Article 418(2) of the Commercial Act. Accordingly, the risk of warrants devolving into poison pills can be effectively controlled through judicial oversight. The key to successful warrant adoption lies in ensuring fair pricing and carefully designing protective mechanisms for existing shareholders. The integrated regulatory model proposed in this Article centers on establishing general warrant provisions in the Commercial Act, while reconceptualizing bonds with warrants and stock options as specialized forms subject to these general rules. To protect existing shareholders in warrant issuances, the framework should mandate pro rata allocation as the default rule, require charter authorization or special shareholder resolution for third-party allocations along with legitimate business purposes and fair market pricing, and provide effective remedies including injunctive relief and director liability for unlawful issuances. This study focuses on the general principles establishing the necessity, legitimacy, and legislative direction for warrant adoption, while deferring detailed implementation-including specific issuance procedures, exercise conditions, transferability, and disclosure obligations-to subsequent research.